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On March 26th, Bobby Brown, the 43 year old ex-husband of the late Whitney Houston, was arrested on driving while intoxicated charges in Los Angeles. He was apparently observed speaking on a cell phone without a hands-free device when he was pulled over at approximately 12:30 PM. The arresting officer requested that Brown perform Field Sobriety tests, which he allegedly failed.

It has been illegal to speak on a cell phone without a hands-free device in California since 2009. In New York, the law was recently changed under section 1225 of the Vehicle and Traffic Law to make a cell phone violation a 3 point infraction, in addition to $150.00 fine for the violation.

Mr. Brown has a prior DUI conviction in Georgia in 1996 and served 8 days in prison. Fortunately for him, in California, DWI convictions remain on a driver’s record for only 10 years, so the 1996 Georgia conviction will not affect the outcome of Brown’s present charges in California.

After Brown was stopped on March 26, he submitted to a breathalyzer which reportedly revealed a blood alcohol concentration (BAC) of 0.12%, which is higher than the legal limit of 0.08%, The legal limit was reduced to 0.08% from 0.10% in California in 1990. If Mr. Brown is convicted or pleads guilty to the DUI charges in California, he is subject to a fine of up to $1,000.00, a possible jail term of up to six months, and a six month license suspension.

If Mr. Brown was found guilty of DWI charges in New York, he would be contending with a six month revocation of his driver’s license; a $500.00 fine and mandatory New York State surcharge of $400.00; be required to install and maintain an ignition interlock device (IID) in any vehicle he owns or operates for one year; be screened for alcohol/substance abuse, be required to attend a 7 week “Drinking Driver Program” sponsored by the New York State Department of Motor Vehicles (known as the “DDP”), and also be required to attend a Victim Impact Panel sponsored by Mothers Against Drunk Driving. Further, he would be facing an additional fine of $750.00 known as a “Driver’s Responsibility Assessment” from the Department of Motor Vehicles.

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The New York City Police Department’s Internal Affairs Bureau is currently investigating a police officer who was arrested on suspicion of driving while intoxicated while operating his police cruiser late last month. 31-year-old Christopher Morris was arrested after he drove his police cruiser into a light pole while on duty. Although no one was injured, the pole struck a parked van following the early morning crash.

His fellow officers purportedly knew Morris had consumed alcohol prior to the accident. Before his shift, Morris attended a fundraiser with several other officers on behalf on another officer killed in the line of duty in December 2011. At the event, Morris’ co-workers allegedly realized he was intoxicated and requested that he be placed on desk duty during his shift that evening in order to keep him off of the streets in his patrol car. Instead, Morris was allowed to enter his vehicle and crashed shortly thereafter.

After the collision, the five year police veteran refused a breathalyzer test. Morris was taken into custody for driving while intoxicated after a police supervisor reportedly smelled alcohol on his breath. He was also suspended from the police force for 30 days.

A driving while intoxicated (DWI) charge can have serious implications. Most people charged with driving while intoxicated are concerned with potentially losing their driving privileges and how the charge might affect their job or family members. The potential penalties for DWI, aggravated DWI, or DWAID (driving while ability impaired by drugs) include fines, jail time, mandatory alcohol evaluation, screening and or treatment, the requirement to install and maintain an ignition interlock device (IID) in any vehicles the person owns or operates for 1 year, and the suspension or revocation of the accused individual’s driving license. The penalties for those with a commercial driver’s license are even more severe and can certainly cause loss of employment or job opportunities.

Since 2006, a New York driver with a blood alcohol content greater than .18 will be charged with aggravated driving while intoxicated. If convicted on an aggravated DWI charge, a driver will automatically lose his or her driving license for one year. If you were accused of driving while intoxicated or while ability impaired by drugs, you need the services of an experienced, knowledgeable attorney as soon as possible.

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On March 23, 2012, after approximately five hours of deliberations and testimony from competing experts and the defendant himself, a Palm Beach County jury comprised of 5 men and 1 woman convicted multimillionaire Polo Club founder John Goodman, 48, of DUI Manslaughter and vehicular homicide in the February 12, 2010 fatal crash which claimed the life of 23 year old engineering graduate Scott Wilson. The accident occurred when Goodman’s Bentley went through a stop sign and broad sided Wilson’s vehicle at approximately 63 miles per hour. Wilson’s vehicle flipped over and was apparently pushed into a canal by Goodman’s car. The prosecution offered evidence that Goodman’s BAC (blood alcohol concentration) at the time of the crash was .177%, more than double the legal limit of 0.08%.

Further, the prosecution showed that after the accident, Goodman left the scene without assisting Mr. Wilson or calling 911, and through testimony from the medical examiner, that Mr. Wilson died not from his injuries from the accident, (which were described as “superficial”), but rather from drowning. As a result, Goodman was also convicted of failing to provide aid to Wilson, which will lead to a longer jail sentence.

Mr. Goodman retained noted defense attorney Roy Black (famous for his successful representation of JFK nephew William Kennedy Smith in 1991 on rape charges), who lodged a two part defense: First, Black argued that Goodman was not drunk at the time of the accident; rather, he began drinking after the accident. Black contended that after the shock of the accident, Mr. Goodman walked to a local bar, where he drank a half bottle of liquor. Secondly, Black contended that Goodman’s Bentley had a throttle malfunction, causing him to be unable to stop his vehicle as he approached the stop sign. As to the first contention, the defense introduced the testimony of friends of Mr. Goodman, who specifically denied seeing him drink any alcohol that evening. As to the vehicle malfunction argument, there were competing experts from the prosecution and the defense, arguing whether vehicle codes in the vehicle were set prior to the crash, (proving a throttle malfunction), or after the crash, as the prosecution’s expert testified.

The defense also argued that Goodman suffered a concussion in the accident which prevented him from remembering what had occurred or offering any assistance to Mr. Wilson. In support of this argument, they took the risky step of putting Mr. Goodman on the stand, who was unable to recall almost anything of the evening’s events other than he was not intoxicated at the time of the deadly crash. Without question, Goodman’s testimony did not help his cause. One juror, Dennis DeMartin, called putting Goodman on the stand a “big mistake” after he stumbled through three hours of cross examination and acknowledged having 3 or 4 drinks prior to the accident in contradiction of his defense’ main contention that he had nothing to drink before the accident. The defense was also hurt significantly by testimony of Goodman’s girlfriend, who denied that he complained of any head injury, and the emergency room nurse, who testified that Goodman complained only of wrist pain.

Mr. Goodman faces 30 years in prison on the manslaughter and vehicular homicide charges when he is sentenced on April 30th. Mr. Black has vowed to appeal, citing “multiple errors…committed during and before the trial that, in effect, denied our client’s ability to get a fair trial.” In an unusual decision undoubtedly made as a result of Goodman’s considerable wealth and potential as a flight risk, Judge Jeffrey Colbath denied Goodman’s application for bail while Goodman awaits sentencing.

In all likelihood, Goodman will end up getting a sentence of approximately 12-15 years when he is sentenced on April 30th.

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There is a DWI trial going on in West Palm Beach now that has captured widespread attention around the U.S. The case involves 48 year old Houston multimillionaire John Goodman, who is charged in the February 12, 2010 death of 23 year old Scott Wilson, who was killed when Goodman’s $200,000 Bentley went through a stop sign and struck Wilson’s vehicle. The accident caused Wilson’s Hyundai to flip over and into a canal, where Wilson drowned. The evidence presented in Court allegedly shows that Goodman’s BAC (blood alcohol concentration) was more than twice the legal limit at the time of the accident.

According to the local medical examiner, Wilson would not have died from his physical injuries in the accident. Accident reconstruction experts claim that the Bentley was traveling at 63 miles per hour at the time of the crash.

Goodman is charged with DUI manslaughter, vehicular homicide and leaving the scene of a serious personal injury accident, and could face up to thirty years in prison if convicted of the charges. The prosecution contends that Goodman’s BAC was approximately 0.18%, more than twice Florida’s legal limit of 0.08%. Ellen Roberts, the prosecutor, informed the jury that Goodman consumed between 16 and 18 drinks before entering his vehicle. They presented evidence from Palm Beach County Sheriff Richard Safford, who testified that Goodman smelled as if alcohol was “almost coming directly from his pores…” and that he had to roll down his windows to let the smell clear out of his vehicle after transporting Goodman to the precinct.

The defense has offered two arguments for Goodman’s innocence. First, they contend that Goodman was not intoxicated prior to the accident, but rather, began drinking after the accident to deal with the pain of his injuries, which include a shattered wrist, broken sternum and an unspecified head injury. The second contention the defense has made is that a malfunction in the Bentley caused the vehicle to accelerate rather than stop when Goodman approached the stop sign.

In disputing the first contention, the prosecution has offered the testimony of two witnesses who observed Goodman drinking at two establishments before the accident. As for the second argument, Ms. Roberts presented the testimony of Wellington Regional Medical Center nurse Cecilia Betts, who testified that Goodman never made any complaints of dizziness, headache, or any other signs of a head injury at the hospital, only wrist pain. Further, during her testimony, Goodman’s girlfriend Heather Laruso Hutchins did not recall Goodman complaining about pain other than of his wrist.

The defense also claims that a purported head injury suffered by Goodman caused him to forget that he had struck another vehicle and that the occupant of that vehicle would need assistance, or at least a call to 911. Goodman apparently left the scene without making an effort to assist in a rescue of Mr. Wilson after the accident. Goodman’s attorney claims that Goodman suffered a concussion, which was responsible for his conduct. However, the prosecution presented evidence that Wilson was able to call his girlfriend to notify her of the accident, and also was physically and mentally capable of walking to another bar and ordering additional drinks.

Two other facts about this case bear mention. First, Goodman’s attorneys have apparently settled a civil wrongful death action with Wilson’s parents for an undisclosed sum. Secondly, in a bizarre twist, Goodman has adopted his 42 year old girlfriend, ostensibly in an effort to protect his substantial assets.

To watch a computer recreation of the Goodman DWI crash, go to this link from the South Florida Sun Sentinel.

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In Part 1 or this article, we discussed the circumstances of when a motorist is required to install an ignition interlock device in their vehicle, how the IID works, how long the IID must remain in the vehicle and the crimes that require the installation of an ignition interlock device. We begin part 2 with the question: What if the motorist is not able to afford the installation or maintenance fees associated with an IID?

If the driver can demonstrate through the Court mandated “Financial Disclosure Report” that he or she does not have sufficient resources to pay for the IID installation and maintenance, the Court may either order a payment plan or waive the fee entirely. This form is extensive, and covers all sources of income, including bank accounts, property, rent, mortgage payments, and family members who might be able to assist in payment of the fees. Only if the Court is satisfied that the motorist has no means of payment will the fees be waived.

If the motorist does not own a motor vehicle as of the time of sentencing, proof must be given to the Court to this effect, from sources such as the NYS Department of Motor Vehicles and an insurance company if the vehicle was recently taken off of the road. If the motorist obtains a motor vehicle during the time of the DWI sentence, that vehicle must be equipped with a IID.

Once the driver has passed the start up test with the IID, the device will require “rolling tests” at regular intervals of approximately 15 minutes to 30 minutes. If the driver fails the start up test, he or she must re-take the test in 5-15 minutes. Additionally, once the start up test has been passed, rolling tests are required approximately every 15 to 30 minutes. Rolling tests are required while the driver is operating the vehicle. If the driver fails the rolling test, a rolling re-test will be required in 1-3 minutes. If a number of tests are failed, the car will go into “lockout mode” and then it will not be possible to start the vehicle unless it is brought back to the facility where the IID was installed.

If the driver fails a start up test or rolling test, this information will be provided to the sentencing Court, District Attorney’s Office, Department of Probation, and any treatment provider. This can result in a violation in the person’s sentence of a conditional discharge or probation, and can lead to re-sentencing on the original charge.

Additionally, if the driver tampers with the IID, fails to use the device, or attempts to have someone else blow into the device, this can lead to additional criminal charges against the driver, as well as any person charged with assisting in the tampering.

There are exceptions for use of the IID if the driver is operating a vehicle at work, as long as it is proven that the employer knows about the sentence and consents to allow the employee to operate vehicles without the device installed. However, if the person is self employed, they must only operate vehicles equipped with an ignition interlock.

After the sentence is completed, the driver can apply to the Court and Department of Probation to have the device removed at a Court approved facility.

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In August of 2010, the New York Vehicle & Traffic Law was amended as part of Leandra’s Law to include a provision that in all DWI convictions, the motorist is required to install and maintain an ignition interlock device (IID). An IID is a device which prevents a car ignition from starting if the operator of the car has a blood alcohol level of .025% or above when blowing into the device. Alcohol based mouthwashes such as Listerine are not recommended when the driver has an IID in their vehicle, as their use can lead to a positive alcohol finding despite the fact that the driver was not drinking alcohol. Clients must also be informed that if they drink alcohol the night before, and must drive to work early the next morning, they must be very careful to make sure that their alcohol intake is completed well in advance of entering their vehicle the next morning. Otherwise, there can be a positive alcohol reading, leading to serious consequences, despite the fact that the person was not drinking alcohol for many hours prior to entering their vehicle.

Under the law, an IID must be installed in all motor vehicles which the defendant either owns or operates. Thus, if the person convicted of a DWI is married or has children living at home who own motor vehicles, unless the person can prove to the Court’s satisfaction that he or she will not have access to the other motor vehicles in his or her household, the ignition interlock must be installed in all of the vehicles! The IID is required by law to be installed in the motorist’s car for at least six months, but in practical effect, all Courts in my experience are ordering that the device remain in the vehicle for a minimum of one year.

It is important to note that the IID must be installed in any DWI convictions, including common law DWI (by the officer’s observation of Field Sobriety tests, alcohol on breath, slurring words, staggering, loss of balance, bloodshot or watery eyes, for example), per se DWI (by chemical test evidence, including a breathalyzer, blood or urine tests), felony DWI, and aggravated DWI. Aggravated DWI is charged when the driver has a BAC (blood alcohol concentration) or 0.18% or above. However, the IID does not have to be installed on a DWAI conviction or plea (Driving While Ability Impaired), which is a traffic infraction, and not a crime as is a DWI.

When the Court sentences a driver on a DWI, they must report to the Department of Probation for direction on installation of the IID, which can only be performed at specifically authorized facilities. The driver must then return to Court with proof that the ignition interlock was installed in all vehicles which he or she owns or operates. The driver is required to pay the cost of installation of the device, as well as maintenance of the device during the one year period. The maintenance fees are approximately $75.00 per month or slightly higher.

In Part 2 of this article, we will discuss possible waiver of IID fees, the penalties for tampering with the ignition interlock or having someone else blow into the device, and the rules governing employer owned vehicles for motorists ordered to install an ignition interlock in their personal vehicles.

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According to a study reported by Ken Valenti in The Journal News this week, arrests for driving while ability impaired by drugs (DWAID) is a prevalent problem in Westchester, Rockland and Putnam Counties, and more drivers were arrested on this charge in 2011 than ten years ago, despite increased public awareness. The report determined that were 145 DWAID arrests in 2001 in the three county region, compared with 261 last year.

DWAID can result in the same penalties as if the driver is accused of a DWI, including a misdemeanor on the first charge, and a felony on the same charge within 10 years, or a felony on the first DWAID if there are children under the age of 16 in the vehicle (Leandra’s Law). DWAID is more difficult to detect than a DWI, as it is not as easy to determine a this offense by laboratory results, which would require a urine sample or blood test, as it is to conduct a chemical test of the motorist’s breath, which can be performed at the precinct. Additionally, DWI’s are often charged based on the officer’s common law observations of the driver, including slurred speech, alcohol on their breath, or bloodshot eyes, much easier to determine from alcohol than drugs.

Across New York State, many police officers are now being trained as “DRE”’s, or “Drug Recognition Expert[s].” There are 250 DRE officers in New York, which requires 200 hours of training in detecting the signs and symptoms of drug usage. Driving while impaired by drugs has become a bigger problem, according to the Westchester Department of Public Safety, due to increased prescription drug usage and abuse, as well as the use of illicit drugs such as heroin and cocaine.

The problem may be worse than reported, since if the arresting officer determines that a driver is intoxicated by means of a chemical test result or field sobriety test, there is little incentive to also check whether the motorist is impaired by drugs. Countywide, Westchester police officers arrested 157 drivers for DWIAD in 2011, which was more than 40% of the overall impaired driving arrests. In 2011, Westchester had 196 DWAID and 1,628 DWI arrests, Putnam County arrested 15 for DWAID and 428 for DWI, and in Rockland County, there were 50 DWAID arrests and 640 for alcohol related impairment. In Westchester County, there was a large increase in DWAID arrests from 2001, when there were 122, (more than a 60% increase to 196 in 2011), but there was a decrease in DWI arrests from ten years ago, from 2,049 in 2001 to 1,628 in 2011.

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When charged with any drunk driving offense, under the New York Vehicle And Traffic Law, the driver’s license of the defendant will be suspended at the arraignment, under the policy of “suspension pending prosecution.” Essentially, what this means is that regardless of whether the DWI charges are eventually proven or not, the person’s driver license is suspended on the first Court appearance in the case. Obviously, this presents a significant problem for people who must drive themselves to work, school, or medical treatment and have no viable alternative means of travel due to logistics or finances.

Under certain circumstances, the Court may permit the driver to obtain what is known as a “hardship privilege” or hardship license under Section 1193 (2) (e) (7) of the Vehicle & Traffic Law. A hardship license will only be granted by the Court after a “Hardship Hearing” is conducted by the presiding Judge, which by law must be held within three days of the arraignment date. In order to obtain the hardship license, the motorist must show that he or she has no alternative means of travel to and from work, school, or necessary medical treatment, and that the lack of such a license would impose an “extreme hardship” (a moderate hardship is not sufficient) on the defendant.

To substantiate the need for the hardship privilege, the Court takes testimony from the driver, who must have proof of where they work and live, and establish that they have no nearby relatives, friends or co-workers who could drive them where they need to go while the DWI case is pending in Court. The Court also requires proof of extreme financial hardship, including pay checks or other proof of salary, as well as evidence as to what the cost and/or availability of buses, trains or taxis would be if the driver was required to use these means of travel. Additionally, a friend, relative, or co-worker must be in Court to corroborate the testimony of the defendant.

If the hardship license is granted, it will be effective only for the specific days and hours that the driver testifies that he or she requires their car for round trip transportation to work, school or for medical treatment. The hardship license is not to be used for travel to non-essential locations such as to a restaurant, friend’s house or the mall. If the driver is caught using the hardship license for non permitted uses, this will result in the termination of the privilege and possible other sanctions by the Court.

A hardship license is also not available to commercial license holders, to defendants who have refused a chemical test such as a breathalyzer, or to drivers who have had a previous DWI charge within the last five years.

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Earlier this month, Detroit Tigers All-Star third baseman Miguel Cabrera pled no contest to a drunk driving charge in Fort Pierce, Florida. By accepting a plea in the case, Cabrera will be able to avoid the possibility of jail time and get a dismissal of other charges surrounding his DWI arrest, including resisting arrest and having an open container in his vehicle.

Back in February of 2011, Mr. Cabrera was stopped by police in Fort Pierce, Florida at the side of a road with smoke coming out of the engine of his Land Rover. When police officers asked Cabrera to step out of the vehicle, it was reported that he grabbed a bottle of Scotch and took a drink before he complied. The officers noted that Cabrera had blood shot, watery eyes, and slurred speech.

Cabrera was apparently belligerent with the officers, and refused to take a breathalyzer. According to Cabrera’s attorney, the primary motivation for the plea deal was a concern that if they fought the case to trial, this would interfere with the 2012 baseball season, which commences with spring training next month.

By pleading to the DWI charges, Cabrera will be sentenced to a year of probation; a six month suspension of his driver’s license; fines of more than $1,400.00, required attendance at a Drinking Driver’s Program and a Victim’s Impact Panel sponsored by Mothers Against Drunk Driving.

Had Mr. Cabrera been found guilty of DWI charges in New York, he would be facing a six month revocation of his driver’s license; a $500.00 fine and mandatory New York State surcharge of $400.00; be required to install and maintain an ignition interlock device in any vehicle he owned or operated for one year; be screened for substance abuse, be required to attend a 7 week Drinking Driver Program sponsored by the New York State Department of Motor Vehicles (known as the “DDP”), and also need to attend a Victim Impact Panel. Further, he would be facing an additional fine of $750.00 known as a “Driver’s Responsibility Assessment” from the Department of Motor Vehicles.

With regard to the refusal to take a chemical test, if Mr. Cabrera was found to have refused this test in New York, he would be subject to a one year revocation of his driver’s license, fines of at least $500.00, and a restriction on his ability to obtain what is known as a “hardship license”, which is granted in certain circumstances during the pendency of a DWI case until its conclusion.

By accepting the plea, Mr. Cabrera was also able to obtain a dismissal of the criminal resisting arrest charges and the violation of having an open container of alcohol.

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Frequently, when our clients are arrested for DWI, they will receive multiple tickets from the arresting officer, and there will be more than one DWI charge. One question the client has is: Why was I charged with multiple counts of DWI? This article will address that question.

Under Section 1192 (2) of the New York State Vehicle & Traffic Law, also known as the per se statute, a motorist can be found guilty of DWI “per se” as follows:
No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva…”

Therefore, in order to be able to prove that a motorist is intoxicated under the per se DWI statute of 1192 (2), the prosecution must have either a blood test, breathalyzer or urine sample which establishes that the person had at least 0.8% of alcohol in their system simultaneously with their operation of a motor vehicle. Realistically, although the statute also provides for proof of intoxication through a saliva sample, this is very infrequent, and in this writer’s experience, has never been the basis for a DWI charge under V & T 1192 (2).

The New York State Legislature provided for situations in which there is no laboratory proof of driving while intoxicated, such as cases in which the driver refuses to take a chemical test, or for some other reason a test is not performed, or is not admissible in Court. This alternative DWI charge is known as “Common Law DWI”, and is found under Section 1192 (3) of the Vehicle & Traffic Law.

1192 (3) states: “No person shall operate a motor vehicle while in an intoxicated condition.”

The reason investigating officers will issue tickets for both per se DWI under 1192 (2) and common law DWI pursuant to 1192 (3) is to account for the possibility that the per se DWI charge will not be substantiated, due to some evidentiary issue with the blood, breath or urine sample. Further, in cases of a refusal, there is no legal basis to charge the driver with 1192 (2) since no breath, blood or urine is available for testing.

Common law DWI can be established by the investigating officer’s observations of the driver performing Field Sobriety Tests, including the walk and turn or one leg stand. Additionally, the officer can testify to his or her observations of the motorist’s operation of their motor vehicle, impaired motor coordination, slurred speech, disheveled appearance, demeanor, or odor of alcohol on their breath or body, among other factors.

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