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Commercial operators in New York such as truck drivers face much more serious consequences when facing any New York drunk driving charge than do non-commercial drivers.

First, the level of intoxication which can result in a New York driving while ability impaired charge, the lowest drunk driving charge in New York, is less for a commercial operator–.04 BAC– (Blood alcohol content) than it is for a non-commercial driver, who must have at least a .05 BAC to be charged with a DWAI. This is absolutely critical, as a commercial driver who is operating a motor vehicle with .04 BAC faces a mandatory one year revocation of his or her driver’s license when convicted or pleading guilty to any drunk driving violation whatsoever, even a DWAI. Thus, a drunk driving charge can be the end of a truck driver’s employment. When comparing this to the situation of a non commercial driver, who on a first conviction of a DWAI, will only be assessed a 90 day suspension of his or her driver’s license, it is clear that New York State has no tolerance for drunk driving charges by commercial operators.

On a second DWI (driving while intoxicated) or DWAI charge, if the commercial driver is convicted of any New York DWI charge, the commercial driver is now subject to a “permanent revocation” of his or her CDL, meaning that the driver must now wait for at least 10 years to apply for a new commercial license! Conversely, on a second DWI conviction for a non-commercial driver, as long as there is no personal injury or an aggravated DWI involved, the non-commercial driver could potentially only have his or her license revoked for 6 months or a year.

On a third DWI charge, or if there is a combination of three DWI charges and/or New York chemical test refusals, there is a mandatory license revocation with no chance of ever getting the license reinstated.

One other vital fact for commercial drivers to know is that it does not matter what type of vehicle you are driving when you get the drunk driving charge, so that even if you are going out for dinner with your spouse and have a few two many cold ones, it has the same effect as if you were operating the tractor-trailer.

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Meghan Wood of Stormville, New York has been charged with one count of first degree vehicular manslaughter, two counts of second degree vehicular manslaughter, and three counts of misdemeanor DWI in the tragic June 18th death of her best friend Lisa Marie Moray. Wood’s SUV went off the ramp from the southbound Sprain Brook Parkway heading onto the eastbound lanes of I-287 at approximately 4:30 AM on June 18th, rolled over, and landed on its wheels. Both women were ejected from the vehicle. The two friends had apparently spent the night drinking at a Manhattan club called Down The Hatch. Wood admitted to police that she had 8 beers and was found to have a blood alcohol content (BAC) of .18, leading to the New York Aggravated DWI charges.

Ms. Moray was pronounced dead at the scene. Ms. Wood allegedly told police that Moray was driving. However, police investigation, including DNA evidence from the car, and a photo from the Henry Hudson toll bridge, apparently shows that Wood was driving the vehicle.

Wood posted the $20,000 bail and is due in Westchester County Court in White Plains on January 22, 2009. She faces a maximum sentence of 15 years on the first degree vehicular manslaughter count under the Penal Law of New York State.

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In an update to our post on November 1, 2008, former New York Assemblyman Ryan Karben pled guilty last week to a New York driving while ability impaired charge, and driving across hazard markings, in the South Nyack Justice Court. By pleading guilty to the reduced charge of Driving While Ability Impaired, instead of a driving while intoxicated charge, Mr. Karben was able to avoid a criminal record, as a New York DWI is a misdemeanor, whereas a DWAI is only a violation.

The charges stemmed from a January 30, 2008 arrest in which Mr. Karben smashed his Acura into a utility pole, failed Field Sobriety tests, and refused to take a chemical test. Interestingly, in addition to paying the fines of of approximately $500.00, having his license suspended for 90 days, being required to attend a victim impact panel and to take a drinking driver course (which will last seven weeks and cost him an additional three hundred dollars), Mr. Karben also was sentenced to two days in jail, which is virtually unheard of in a DWAI case.

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If you are a driver of a commercial vehicle in New York State, driving while intoxicated in New York (DWI) and refusing to submit to a breath screening test have very serious implications, and much more so than with drivers of non commercial vehicles.

Examples include: 1. Drivers of commercial vehicles can be charged with a DWAI (Driving While Ability Impaired”, the lowest level of a drunk driving charge, with a blood alcohol content (BAC) of only .04-.06, lower than the level of .05-.07 which would substantiate a DWAI charge against a non-commercial driver.

2. For a CDL operator, regardless of whether the charge is a DWI, which is a misdemeanor, or a DWAI, which is a traffic violation, the CDL license is revoked for one year. Contrast this with a first time offense by a non-commercial operator, who faces the much less severe penalties of a 90 day suspension of his or her driver’s license on a DWAI, or a 6 month revocation of his or her driver’s license on a DWI.

3. TLC Hack licenses are also revoked for a year on either a DWAI or DWI.

4. If a CDL operator refuses to take a breath screening test, his or her license is revoked for a full 18 months! This refusal will remain on the commercial driver’s record FOREVER. And if you refuse a second time as the holder of a CDL, you are facing a lifetime revocation!

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New York State Troopers in Poughkeepsie arrested a Massachusetts man twice for a New York DWI on the same day last week. Joseph S. Kelley of Canton, Massachusetts drove up to Troop K headquarters in Millbrook in the early morning hours to request directions back to Massachusetts. Kelley was arrested on New York drunk driving charges and had a blood alcohol content (BAC) of .17, more than twice New York’s legal limit of .08. Mr. Kelley was then allowed to take a taxi back to a Poughkeepsie hotel to sleep before returning to Massachusetts. However, Kelley requested that the taxi driver stop at an ATM machine, then ran back to the Troop K headquarters, got his Toyota Highlander SUV, and headed north on the Taconic State Parkway.

Troopers stopped Mr. Kelley in the Town of Stanford where he was arraigned on DWI charges and sent to the Dutchess County jail by Judge Frank Weber. On the second drunk driving stop, Mr. Kelley’s BAC was .14, well above the legal limit of .08. Mr. Kelley was due back in court this week to answer both DWI charges.

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Former New York State Assemblyman Ryan Karben’s DWI trial began on October 25, 2008 in South Nyack Village Court. Karben was arrested in January of 2008 after allegedly crashing his Acura into a utility pole and then continuing to drive before being stopped by police. Karben purportedly told the Ramapo Police officers who arrested him that he swerved to avoid hitting a deer. When Mr. Karben failed 4 field sobriety tests, he was arrested and charged with a misdemeanor DWI.

Apparently, Mr. Karben also refused to take chemical test at the police station, which has resulted in an automatic 12 month revocation of his driver’s license.

Karben’s attorneys, including the well known former ADA for Rockland County, Kenneth Gribetz, are challenging the evidence against Mr. Karben in pre-trial hearings, including whether the Ramapo Police had probable cause to arrest Karben. The Field Sobriety Tests which formed the basis for the arrest were captured on a video camera from the patrol car, undoubtedly making for some very interesting evidence.

Jury selection was scheduled to start this week. We will report on the outcome at the conclusion of this New York drunk driving case.

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It’s a Friday night, and you’ve been out with the guys watching the game at your favorite bar a few miles from home. You’ve had a few drinks, the game is over, and you are on your way home. Suddenly, the police pull you over, and you are asked if you’ve been drinking. When the officer smells alcohol on your breath, he asks you to do the Field Sobriety test (I will write about this in an upcoming post), consisting of standing on one foot, walking in a straight line for 9 steps and then reversing on the same line, and touching your finger to your nose. The officer then requests that you take a breath test. One of the most common questions DWI lawyers get asked is: “Should I refuse?”

There is no easy answer to this question, but there are several things to keep in mind. First, if you refuse, there will be an automatic 12 month revocation of your driver’s license, unless you win at the DMV Refusal Hearing, conducted by a DMV administrative judge in which the odds are definitely against you. Considering that if you do take the test, and you get a DWAI (Driving While Ability Impaired), your license is only suspended for 90 days, or if you are convicted of a DWI, your license is revoked for only 6 months, by refusing the chemical test you are either doubling or quadrupling the time you will be without your driver’s license. On a second refusal, your license is revoked for 18 months!

Second, by refusing you are subject to a $500 fine for the first refusal, and a $750 fine for a refusal on a second DWI charge.

Third, if you are found to have refused at the administrative hearing at the New York DMV, you are not eligible to obtain your conditional license. This is critical, as the conditional license allows you to drive to and from work, for emergency medical treatment, to school, or to pick up your children at day care.

For clients with a CDL, driving a tractor-trailer or other commercial vehicle, a refusal is a very unwise move. By refusing a chemical test, the following will happen: Your license is now revoked for 18 months, and you are assessed a $500.00 penalty. The refusal is on your record forever, so that even if you have a refusal 20 years later driving a private vehicle, it will still have a huge impact on your CDL, because if you have a second refusal, your commercial driver’s license is permanently revoked!

Generally speaking, unless a felony is likely to be charged, or someone has been badly injured or killed as the result of the DWI, refusals are a very risky business indeed.

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From June through July, 2008, three local residents were charged with DWI due to driving the wrong way on major roadways. On June 1, 2008, Eastchester resident Kathleen Beaton was charged with a Rockland County DWI for driving the wrong way on the Tappan Zee Bridge from Westchester to Rockland County. Her blood alcohol content (BAC) was alleged to be .20, which is more than double the legal limit. On September 29, 2008, Ms. Beaton pleaded guilty to aggravated driving while intoxicated, which is a misdemeanor with a one year revocation of her driver’s license and with potential fines of as much as $2,500. Beaton is scheduled to be sentenced in Grand View Village Court on October 22, 2008.

On July 1, 2008, Nabil Zidan of Mohegan Lake allegedly drove southbound on the northbound Taconic State Parkway in New Castle with a blood alcohol level of 0.17 percent. Zidan was charged in a Westchester County DWI, and is due in New Castle Town Court on October 16, 2008.

On June 13, 2008, Kevin Lyons of Rye allegedly drove eastbound on the westbound side of I-287 and collided with a tractor-trailer. Lyons’ BAC was determined to be 0.26, more than 3 times the legal limit. Mr. Lyons was charged with a Westchester County Aggravated Driving While Intoxicated, and is due in Harrison Town Court on October 3, 2008.

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“Binge” Drinking among college students has been a big issue in the news recently, highlighted by the August 2008 death of 23 year old Ed Trapasso, a Valhalla resident and recent college graduate who had friends over to celebrate his graduation. Mr. Trapasso is one of 1,700 college students aged 18-24 who die each year from unintentional alcohol injuries, based upon research from the National Institute on Alcohol Abuse and Alcoholism. Binge drinking is defined as five drinks in two hours for men and four drinks in two hours for women.

Researchers with the Harvard School of Public Health, found a consistent 44% of students over an 8 year period fit the description of binge drinkers. Binge drinking can lead to alcohol poisoning, which causes vomiting, seizures, slow and irregular breathing, hypothermia (low body temperature) and in more severe cases, death. Dr. Michael Skelly, an emergency room doctor at Phelps Memorial Hospital Center in Sleepy Hollow, found that the number of young people he had treated for alcohol poisoning had more than doubled between 2003 and 2007!

Other annual statistics compiled by the NIAAA for college students who abuse alcohol: approximately 600,000 are injured in DWI accidents and other types of accidents; close to 700,000 are assaulted by another student who has been drinking; almost 100,000 are victims of sexual abuse; and approximately 400,000 have unprotected sex, with more than 100,000 not recalling whether they consented to sexual relations.

Lower Hudson Valley colleges have joined forces to curb excessive drinking, forming the “Westchester Colleges Consortium on Alcohol and Other Drugs.” The group is comprised of law enforcement, community organizations, schools and other organizations. For example, at Purchase College, there is a freshman orientation session addressing drug and alcohol abuse, and the college also requires students to take an online course called “AlcoholEdu”, which aims to have students make more intelligent decisions about drinking. Students are provided with a blood alcohol calculator and instructions to assist friends struggling with alcohol abuse.

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The New York Drinking Driver Program (DDP) is a 7 week program designed to assist drivers convicted of driving while intoxicated, driving while ability impaired, or driving under the influence of drugs to make better and more appropriate driving decisions in the future. The program involves classroom education, screening, and in certain cases, evaluation and treatment.

Of critical importance, satisfactory completion of the DDP is required before drivers convicted of a New York DWI or New York DWAI will be permitted to have their license or (in the case of out of state drivers) their New York driving privileges reinstated. The DDP is 7 weeks long and each class is between 2-3 hours, for a total of 16 hours. The cost for the program includes an initial fee of $75.00 paid when the application is submitted, and then a fee of approximately $225.00 on the date of the first session. If you do not attend all seven weekly sessions, you cannot obtain your conditional license. After satisfactory completion of the program, the participant will receive a certificate of completion which must be furnished to the Court as part of the sentence for the DWI. Importantly, especially for those convicted of more than one drunk driving offense, a motorist is only eligible to participate in the DDP once every five years.

In order to enter the program, the driver must go to the local DMV office after sentencing with paperwork obtained from the Court, known as an “Order of Suspension or Revocation.” It generally takes approximately three weeks to get enrolled in the DDP.

A conditional license, which the driver uses until he or she gets his or her license reinstated, can be used to travel to and from work; to and from a class at an accredited school or college; to transport children to and from a child care facility; to and from DDP classes; to and from medical examinations as long as the necessity of the visit is certified in writing by the physician; to and from DMV with regard to the conditional license, and for court-ordered probation activities. A conditional license is not valid for driving a taxi or any motor vehicle that requires the driver to have a Commercial Driver License (CDL).

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