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During the course of an arrest for New York DWI, the arresting officer will request that you take a chemical test of your blood, urine, or breath. Most commonly, the request is to take a breathalyzer, which should not be confused with the breath screening test (often an alka-sensor is used at the scene, the results of which are not admissible in Court). When the request is made, many people react based upon what friends or relatives have told them, i.e., always refuse the test (not great advice) try to chew a piece of gum or drink coffee ( absolutely useless), or stall (not going to work).

What most drivers do not know, is that you do have a qualified right, based upon a 1968 Court of Appeals case People v Gursey, to contact an attorney to advise you as to whether to take the chemical test or not. To be clear, because the issuance of a driver’s license is a privilege, and not a constitutional right, there is no absolute right to an attorney, as there would be in a criminal case. Clients often confuse the fact. The DWI case is a criminal case, whereas a failure to take the chemical test results in a Refusal Hearing, which is an administrative proceeding, conducted at the local Department of Motor Vehicles office for that county.

The caveat to your rights under Gursey, is that you may not “substantially interfere with the investigative procedure” while requesting to contact a lawyer. What this means is that if you need to start looking up the name of an attorney while in the course of your DWI arrest, or start frantically calling friends to get the name of a lawyer who may or may not be available when you call (not too likely at 3:00 in the morning), the qualified right to counsel established under People v. Gursey is not likely to help you.

The best advice that I can offer is to have an attorney’s name and phone number saved in your cell phone, so that if you are stopped for a DWI, and a request is made for you to consent to a chemical test, you can quickly contact an attorney that you know you will be able to reach, and receive the advice that you need.

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I recently represented a client in a Mount Vernon DWI case. He had been charged with a DWI a few weeks before, and had no alternative options to get to work other than driving himself–he lives alone, has no local friends or family, and works in a location which does not have easily accessible public transportation. Further, taxis would be prohibitively expensive. Under normal circumstances, this would be a client who might very well be eligible for a “hardship license“, which privilege allows those charged with a DWI to drive to and from work, school, for medical treatment, and emergencies during the pendency of a DWI case.

However, the problem for this client is that he lost his eligibility for a hardship license due to his refusal to take a chemical test when the arresting officer asked him to take a breathalyzer. Clients frequently ask the question–“If I am asked to take the test, should I do it?” There are several factors which go into the decision whether or not to take a chemical test: Have you ever been convicted or pled guilty to a DWI before? Are you a commercial driver? Was there an accident involved? How much did you have to drink? The conventional wisdom among DWI lawyers seems to be that if there was an accident or if you have had a substantial amount to drink, it might be the wisest course of action to refuse the test. (The caveat being that in some cases the investigating police can obtain a Court order compelling a mandatory blood test even with a refusal, particularly if there was a bad accident.)

Commercial drivers will suffer much more serious consequences if found guilty of a refusal, (or any DWI related charge for that matter) and on a second refusal, can suffer permanent revocation of their commercial driver’s license, effectively ending their chosen livelihood. In summary, the decision whether to take a chemical test is a complicated one, and listening to people who don’t know any better telling you that it is always better to refuse is not a wise decision–the circumstances surrounding your case absolutely DO matter.

If you have not had much to drink, there was no accident, and you have not previously been convicted or pled guilty to a DWI, the wise course is to take the chemical test. Why? Because if you are found guilty of a refusal, you will have your license revoked for one year, and pay an additional fee of $500.00 to the Department of Motor Vehicles. Further, as in the case with my client, you will find yourself ineligible to obtain a hardship license while the criminal case is proceeding.

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On January 30, 12011, a 45 year old Ossining man became the first allegedly drunk driver in Westchester County to be indicted for violating the new ignition interlock provisions of Leandra’s Law, which went into effect last August. Leandra’s Law requires, among other things, that if a motorist is convicted or pleads guilty to DWI charges, he or she must install and maintain an ignition interlock device in their car for a minimum of 6 months. (In my experience, most Courts have been requiring that the device remain in the vehicle for one year). Additionally, the law mandates that if a driver is charged with driving while intoxicated with a child under the age of 16 in the vehicle, he must be charged with a felony.

In this case, Abel Pinto was arraigned in White Plains arising out of a police pursuit on January 30 on Route 9 in Cortlandt. Police arrested Mr. Pinto and charged him with DWI, aggravated DWI, unlicensed operation of a motor vehicle, speeding, and unsafe lane change infractions, and in a first, for operating a motor vehicle without a Court-ordered ignition interlock device, which is a misdemeanor. Apparently, Mr. Pinto had two previous convictions for DWI in the last 10 years, which mandated that he be changed with felony DWI.

Pinto is to return to Court on May 3, 2011. He could be sentenced to up to 7 years in state prison if convicted of the felony charges.

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Former NBA and Michigan University basketball star Jalen Rose has been charged with driving while intoxicated in Detroit, Michigan. The charges stem from an incident on March 11, 2011 when Rose’s car slid off a roadway and crashed in Detroit. When police officers investigated the one car accident, Rose was asked, but refused, to take a breathalyzer. However, Rose agreed to take a blood test believing that his blood alcohol content (BAC) would not show that he was intoxicated.

Apparently, the results of the blood test have indicated that Rose was driving with a BAC above the legal limit. Similar to New York State, the legal limit for intoxication in Michigan is 0.08 percent or above. In New York, if a motorist is found to be operating a vehicle with a blood alcohol concentration of 0.18 or above, he or she is charged with an aggravated DWI under section 1192 (2)(a) of the Vehicle & Traffic Law of the State of New York.

Rose is due back in Court on April 20, 2011. If he were to be convicted of a DWI in New York, he would be facing a 6 month revocation of his driver’s license, fines and surcharge of approximately $900, the requirement to install an ignition interlock device in his vehicle for one year, be screened for substance abuse, the necessity to attend a MADD Vitim Impact Panel, and a 7 week course at the conclusion of his case known as the DDP or Drinking Driver Program.

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George Kiaha, a 25 year old Garrison resident, was sentenced this week to the maximum 2 1/3 to 7 year jail sentence for the September 4, 2009 fatal DWI that resulted in the death of 55 year old Ralph Wood and injured five members of his family. The D.A.’s office claimed that Mr. Kiaha had a blood alcohol concentration (BAC) of 0.11 when the vehicle he was operating in Cortlandt Manor crossed a double yellow line and struck head-on the car in which Mr. Wood was a passenger. All the occupants of both vehicles were hospitalized. Mr. Wood apparently suffered a ruptured spleen in the crash, went into cardiac arrest and died.

Mr. Kiaha was convicted by a Westchester County jury of all counts against him, including vehicular assault (the top count), criminally negligent homicide, reckless driving and five misdemeanor counts of assault for each of the occupants of the other vehicle in the crash. He was sentenced by Judge Barbara Zambelli to the severest sentence possible for vehicular manslaughter. Mr. Kiaha’s defense attorney argued to the jury that poor police work and mishandled evidence created doubt as to the blood alcohol findings taken at the hospital, but the jury did not accept that contention.

The attorney had asked the Court to sentence Mr. Kiaha to what is known as shock probation, which involves some jail time and then five years probation, but Judge Zambelli rejected that request. It is not yet clear if Mr. Kiaha will appeal his conviction. Certainly, the severity of Mr. Kiaha’s sentence was affected in part by the obvious tragic circumstances of the accident, and in addition, the fatal accident on the Taconic in 2009 and the effects of Leandra’s Law, which became fully effective this past August.

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On February 16, 2011, the Detroit Tigers all-star first baseman Miguel Cabrera was charged with DUI in St. Lucie County, Florida. A deputy observed Cabrera’s 2005 Land Rover with smoke coming from the hood on the side of the road and stopped to investigate. Allegedly, when the deputy approached Mr. Cabrera’s vehicle, he took a bottle of scotch and began drinking from it.

According to reports, Mr. Cabrera refused a breathalyzer and resisted arrest. In addition to DUI, he was charged with two misdemeanor counts of “resisting an officer without violence”, and a citation for a open container of alcohol.

Cabrera was released from the St. Lucie County jail on February 17 on $1,350 bond.

If Mr. Cabrera was charged with a New York DWI under similar circumstances, he would be facing at least a one year revocation of his driver’s license based upon the refusal to take a breathalyzer; fines and Court surcharges of approximately $900.00, would be required to pay a $750 “Driver’s Responsibility Assessment to the NYSDMV; be required to attend the Drinking Driver Program; and possibly be required to install an ignition interlock device in his vehicle for one year.

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David Cassidy, the star of the 1970’s sitcom “The Partridge Family”, accepted a no-contest plea in a Florida Court to DUI charges on February 16, 2011. Essentially, a no-contest plea means that there is no in Court admission of the charges, but the defendant does not fight them either. By taking the plea through his attorney, Mr. Cassidy was not required to be in Court to acknowledge his plea. Cassidy was also charged with failure to maintain a single lane, and an open container violation. Frequently, in New York, these charges would be dismissed in a plea to the top charge in what is called taking a plea to one charge “in full satisfaction” of the docket against the defendant.

Back on November 3, 2010, the 60 year old former teen idol was pulled over by a Fort Pierce officer who observed Cassidy’s car weaving in and out of traffic and veer off the roadway. Cassidy told the officer that he had a glass of wine and had taken a Hydrocodone earlier in the day.

Cassidy is alleged to have failed Field Sobriety Tests. A breathalyzer administered shortly after the arrest revealed a blood alcohol concentration of 0.14, well above Florida’s legal limit. Reportedly, the investigating officer found a bottle of bourbon in the vehicle.

Had this arrest and plea occurred in New York State, and Mr. Cassidy was charged with a New York DWI, he would be facing the following: a minimum six month revocation of his driving privileges; court fees of at least $900.00; the requirement to attend and complete the New York State Drinking Driver Program, (DDP), payment of $750.00 in fines to the New York State Department of Motor Vehicles; (NYSDMV) (known as the “Driver’s Responsibility Assessment”) and the installation of an ignition interlock device in his car for at least one year.

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On January 28, 2010, Christin Ewing, a 29 year old wrestling coach with Mahopac High School, was arraigned on felony leaving the scene of a personal injury accident charges in the White Plains City Court. The case arises out of an incident on December 19, 2010 at approximately 4:00 AM when 23 year old Raul Rios, (coincidentally also a former wrestling coach with White Plains High School) was struck by a black Mercedes Benz as he was crossing Post Road near Kennedy Fired Chicken. The Mercedes kept going after the accident, which was supposedly captured on video surveillance cameras along Post Road near its intersection with Mamaroneck Avenue.

The videos were enhanced to enable police to identify the license plate number, and police also checked numerous dealers and body shops to determine if any late model black Mercedes with front end damage were brought in for repair over the last 6 weeks.

Rios suffered severe head trauma and was hospitalized for several weeks at Westchester Medical Center before being discharged to begin physical therapy. Apparently, moments after the accident, two other people suffered minor injuries when they were struck by another vehicle while offering assistance to Mr. Rios. The driver of that vehicle, David Bautista of White Plains, also did not stop, and was apprehended near the accident, where he was arrested for DWI and misdemeanor leaving the scene of an accident.

Judge Eric Press set bail at $20,000 cash or $50,000 bond. If Ewing were to be convicted on the felony leaving the scene of a personal injury accident under section 600 (2c) of the New York State Vehicle & Traffic Law, he could be sentenced to fines of not less than $1,000 nor more than $5,000, as well as possible jail time of up to 4 years on a class E felony.

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Putnam County District Attorney Adam Levy has installed a vigorous anti-DWI program since his tenure began in 2008. Levy, a former criminal defense lawyer, has worked with local police agencies in adopting a vehicle forfeiture program in felony DWI cases. Since implementation of the seizure plan in January of 2010, 29 vehicles have been taken from owners convicted of felony DWI. The vehicles are then sold at auction, with the proceeds split between local police agencies, the state Office of Alcoholism and Substance Abuse (OASAS), and Putnam County.

Putnam County spent $30,000 buying a lot in Carmel where seized vehicles are stored. Other counties, including Westchester County and Rockland County, are installing the same forfeiture program. In Westchester County, no cars have yet been seized because the law is new and no convictions have apparently been obtained under the forfeiture provisions, which only involve arrests and convictions on county owned roads.

Putnam County had 553 DWI arrests in 2008, a significant increase from the 392 in 2007. Putnam hired an assistant district attorney with the specific role of supervising the forfeiture program. There is a financial hardship exception in which vehicles can be returned, such as in cases where the family has only one vehicle and other family members would face job loss or be unable to care for a relative with health problems unless they had access to the car. However, there will be a specific stipulation that the convicted motorist will be forbidden from operating the vehicle.

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Leandra’s Law, making it a felony to drive while intoxicated with a child under the age of 16 in the vehicle, led to 661 DWI arrests in 2010, according to an evaluation by the New York State Division of Criminal Justice Services. The law was named for 11 year old Leandra Rosado, who died in an October, 2009 car accident when the SUV she was a passenger in flipped over in Manhattan. The driver of the SUV, Carmen Huertas, is currently serving a 4-12 year sentence for the felony DWI charges.

The number one county for Leandra’s Law arrests in 2010 was Suffolk County, with 67 arrests, followed by Erie County with 57 motorists being charged. Westchester County was third, with 45 drivers charged under the law, which went into effect on December 18, 2009.

Male drivers were twice as likely to be arrested under the statute; police charged 425 male motorists and 236 female drivers. Across the United States, 36 states have a child endangerment statute which punishes intoxicated drivers with a child in their cars, but New York was the first state to make it a felony to drive while intoxicated with a child under the age of 16 in the vehicle. Certainly, the Diane Schuler accident in July, 2009, in which 8 people died including 4 children, played a significant role in creating the impetus for Leandra’s Law.

Under the statute, any driver now convicted of driving while intoxicated must install an ignition interlock device (IID) in their vehicle for one year. With an IID, the vehicle will only start if the driver has alcohol free breath, and then the driver must continue to blow into the device approximately every 15 minutes to keep the ignition from cutting off. Failure to install, maintain or comply with the IID device can result in additional misdemeanor charges.

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