There is a strange story in the Buffalo News about a DWI offense where an officer responding to the incident was very seriously injured while en-route. The Niagara County DA is quoted after extensive legal research, he is unable to charge the defendant with additional offenses related to this accident.

Well, ok. But the premise, and the attempt here is disturbing. A very unfortunate accident in the course of a police officer doing his job has nothing to do with this man’s incident. The officer could have been responding to literally anything when this happened. If he had been responding to a call about a dog running through traffic, would they have tried to charge the dog with a crime?

This story just shows the hysteria surrounding drunk driving laws. The man in question was charged with a DWI and leaving the scene of an accident.

The story also makes a big deal out of the disappointment  that the man has a previous DWI (over 15 years ago) and has issued a hardship license by a local NY court. Hardship licenses are very standard, especially in rural parts of the state where people are unable to function.

What happened to the officer is horrible, there is no question, but punishing people for accidents that they had no direct influence over, and never could have forseen is inexcusable.

The report goes on that the officer and his wife are considering civil litigation against the defendant. This would be a terrible precedent, and we hope it doesn’t come to that.

Eleven year old Leandra Rosado was on her way to a slumber party, riding in a vehicle with 7 little girls and one mother. The mother later found to have been driving intoxicated, lost control of the speeding vehicle, flipping it and killing Leandra. It was her, this eleven year old victim, which the relatively new “Leandra’s Law” was named, a law the New York Daily News reports is proving effective.

The law increased penalties for people found to have been driving drunk with children in the car. The latest numbers show that 7/10 of those sentenced under the new law faced felony convictions. More than 40% of them served at least some time in jail or prison. This, they say, is evidence of the laws effectiveness.

Among other things, those caught driving drunk with someone under the age of 16 in their car, would be charged with a felony and face up to 4 years in prison. They would also be required to have an ignition interlock device installed in their vehicle when their driving privileges were reinstated.

Leandra’s father was one who championed for the new DWI laws, and given the name Leandra’s Law. He is said to be encouraged by the actions of prosecutors to make the new felony charges stick, rather than pleading cases down to misdemeanors.

One can only hope those sentenced under the new law will emerge on the other side of the system as changed. Putting youth at risk because of a bad choice is definitely reprehensible and one shouldn’t downplay the seriousness of driving drunk with a child in the car.

But while the law can in fact be considered a “success” in doling out harsher punishments, it’s hoped the people who are sentenced under it also get help for any alcohol abuse problems they might have. Treating the addiction, if there is one, could prevent future similar DWI charges even more than a longer jail stint could.

When you’re facing drunk driving charges, whether it’s your first time or it’s your third offense, you want to be sure you have an advocate in the courts. The laws are designed to punish drunk drivers with a heavy hand and it can feel like no one has your best interests in mind. If you’re facing such charges, contact us today.

A New York State Assemblyman is advocating for breath test devices to be standard equiptment in all vehicles, in an effort to prevent drunk driving (DWI).He has introduced a bill to make alcohol detecting equipment mandatory in all cars in New York by 2015, according to WKBW news  in Buffalo. The bill is not expected to pass.

While everyone is against those who drive drunk and break New York’s DWI laws, even MADD doesn’t go so far as to think mandatory monitoring of all citizens is a good idea. Besides being impractical, expensive, and possibly a violation of citizens civil rights (as if that isn’t enough), there are many questions about how such a system would work.

• Who would pay for these systems?
• What happens with the data collected?
• What is the threshold for “drunk” or impaired? Is it the same as the legal limit of 08%BAC in NY, or set lower than that?

Assemblyman Ortiz has introduced other controversial legislation to the state, including banning salt in New York city restaurants. He has introduced this bill in previous years.

Current NY law allows for a judge to mandate an interlock device after a DWI conviction.

There are a number of passive alcohol detection technologies for cars in development, but they are not considered ready for mass use, and the legal implications are still largely unexplored.

Video here:

New York Jets receiver Braylon Edwards was arrested on a DWI charge Tuesday morning in Manhattan. According to the Times, the football star was stopped for having tinted windows on his vehicle that may have exceeded the legal standard. He was given a breathalzyer test which resulted in a .16% BAC, or twice the legal limit for impairment in New York.

New York City still gets a surprising amount of DWI arrests, despite easy access to cabs and other public transportation.

And it is doubly surprising when a prominent and wealthy athlete gets a DWI charge in Manhattan, since he obviously has the means to have a professional driver take him around town.

But people, wealthy and otherwise, obviously do not always exercise the best judgement.

Edwards is fortunate his BAC wasn’t a tick higher. Just one more drink probably would have pushed his BAC to .18%, which would have made the charge an Aggravated DWI.

But either way, he will have to sort out some legal problems he didn’t count on.

New DWI laws and penalties set to go into effect on 8/15 are causing some concerns for local counties about the costs of implementing the new restrictions. Under the law, NY Counties such as Genesee County take on new administrative and monitoring responsibilities for DWI offenders with new ignition interlock devices installed in their cars, and the source of the funding is not clear.

According to the Daily News, Genesee county estimates it will be responsible for tracking, administering, and monitoring up t0 500 individuals per year with interlock restrictions on their cars from a DWI conviction. No doubt this potentially unfunded requirement will be an issue in counties across the state, which is why many county managers are hoping the strict mandate for all DWI 1st offenders can be rolled back, and the interlock requirement can be issued at a judges discretion, presumably only in cases where a judge feels it is an important public safety issue.

An ignition interlock device is essentially a rolling breathalyzer. It is installed in a persons car, and they must provide a clean breath sample for the vehicle to start. All sample attempts and failures are logged and monitored. Failing an IID test can result in serious criminal penalties.

The IID requirement is one of the elements of Leandra’s Law, which was primarily about tougher penalties for drunk driving with children in the car.

New stricter penalties for NY DWI convictions unanimously passed the New York Assembly and the Senate, and the new law was signed by Governor Patterson. “Leandra’s Law” includes a number of DWI penalty enhancements, including felony charges for drunk driving with a child under 16 in the car, and mandatory ignition interlock device installation for all DWI convictions.The mandatory ignition interlock device requirement on any 1st offense DWI conviction as a condition of driver’s license reinstatement is the most controversial aspect of the new law. Twelve other states, including Arizona and Illinois require interlocks after only a 1st offense drunk driving conviction.

Opponents of mandatory ignition interlock devices include the American Beverage Institute, a restaurant and bar industry lobbying group.  ABI spokesperson Sarah Longwell argues that there is a difference between someone who makes a one time mistake and is barely over the limit, and a person who is significantly impaired, and much more likely to be a continuing threat to public safely. “We don’t punish someone going 5 miles over the speed limit the same as someone going 30 miles over the speed limit.”

The felony level charges for driving with a minor child in the vehicle are decidedly less controversial. Child protection in drunk driving cases is a popular sentiment in New York and nationwide. These felony DWI penalties can be as severe as 4 years in prison for violating this provision of the law.

The first phase of the law, including the new felony DWI penalties, and mandatory IID for felony drunk driving convictions starts on Jan 1, 2010. The mandatory interlock for any drunk driving conviction doesn’t start until later next year.

More on NY DWI laws.

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Further Reading:

Epoch Times – New York Governor Signs Nation’s Toughest DWI Law

WNYT.com – Tougher DWI law expected to increase demand for ignition devices

Another tragic DWI case on Long Island adds to calls for a mandatory ignition interlock device law in New York.

This most recent incident reported in the Long Island Press notes a repeat drunk driving offender on probation and with a driver’s license under suspension.  He is accused of driving drunk, crossing the road and killing a college student, and seriously injuring his friend in the accident.

This tragedy adds to calls for advocates of tougher drunk driving penalties to require more restrictions on anyone convicted of a DWI.

As we previously noted, a bill to require Ignition Interlock Devices for all first time convicted DWI offenders in New York is being considered by the state assembly.

Of course we know that most people convicted of a DWI in New York never get in trouble with the law again. Is it fair, and more importantly, is it an effective use of court resources to require everyone to install an IID?

The proposed law would take away all discretion from judges to determine who is a serious threat and danger to themselves and others. There is a big difference between someone who was barely over the limit, was not driving erratically, and caused no harm to anyone, and someone was dangerously impaired and all over the road, with a BAC of twice the legal limit.

Mandatory sentencing will take all reasonable discretion away from judges to make this call.

But there are certainly some people who have chronic alcohol abuse problems, and these people certainly need extra help and monitoring. That’s why it is reasonable for a law to require the IID after a high BAC reading, indicating a likely alcohol problem, or at a judges discretion if there are other indications of alcoholism.

One size rarely fits all when it comes to the law.

A Buffalo News Opinion piece accused the National Highway Traffic Safety Administration of suppressing and ignoring data about the dangers of not just hand-held mobile phones while driving, but hands-free devices as well.

It is true that there are a number of studies that show how distracted driving - which can mean anything from chatting on the phone, arguing with other vehicle passengers, playing with the on-board GPS system, or changing songs on a car MP3 player – is just as dangerous as driving with a .08% BAC in your bloodstream.

And we’ve noted before that texting while driving is even more dangerous than driving while impaired. Which makes sense, since texting requires more concentration and attention paid for longer durations that changing the song on the stereo.

So it is an absolutely legitimate point to question why these activities are not  penalized with criminal charges nor demonized by the media to anything near the degree of drunk driving cases.

The author of the editorial, Sarah Longwell, attempts to paint a picture of a corrupt congress, willfully burying the facts about the danger of distracted driving, due to the influence of millions of dollars in campaign contributions from the auto industry. Ever increasingly complex car gadgets like bluetooth-enabled hands-free teleconferencing mobile networking espresso makers do sell cars. And the car companies have a vested interest in keeping this going, so buying off the lawmakers to ignore the issue and the danger is plausible.

Maybe.

Or perhaps the more simple explanation is that there is no huge constituency of decades long advocacy against distracted driving, unlike with anti drunk driving groups like MADD. There are new organizations advocating against texting while driving, but that is a relatively new interest group. Congresspeople not only respond to contributions, but they also listen to these organized interest groups who lobby hard and garner public attention and opinion.

And speaking of lobbying groups, it may be difficult for many in the public to take an article railing against the influence of lobbyists working against the public good seriously, when that spokesperson works for the American Beverage Institute. The ABI is a lobbying group that defends “responsible consumption of adult beverages” for it’s clients, the restaurant and bar industry.

Again, alcohol consumption is a perfectly legal activity, and it is fine to defend against many of the crazy MADD people who are openly ne0-prohibitionist, and think all vehicles should have ignition alcohol monitors that don’t allow cars to stop if the driver has any detectable amount of alcohol in his or her system. They would gladly shut down all restaurants and bars that serve a single drink to anyone who will drive home, and maybe everyone else, too.

But I’m not sure this line of reasoning is very convincing from another lobbyist with a clear vested business interest as well.

Horrific tragedies are a common catalyst for change in our laws and procedures, particularly in drunk driving cases. While sometimes and emotional response can result in an over-reaction that is out of proportion with the facts, there are other situation where a truly heartbreaking situation demonstrates a loophole that needs to be addressed.

Several weeks ago, New York mother and wife Diane Schuler caused a deadly accident on the Taconic State Parkway. The accident killed 3 men in the other vehicle as well as Schuler herself and 4 children that were riding in her vehicle.

After the accident, the autopsy revealed Schuler had a blood alcohol content (BAC) of .17 percent, over twice the legal limit. According to this article from the Times, she also had alcohol in her stomach, yet to be metabolized. Lastly, she was determined to be high on marijuana.

Last week the New York Times revealed Governor Paterson had introduced legislation to make driving while intoxicated a serious felony when there are children in the car. 35 states already charge drunk drivers operating with minors or children under 14 in the car, with with aggravated or extreme felony DWI charges. New York is behind the curve on this type of legislation.

The new laws would make a DWI offender considered a “serious offender”, even for a first time DWI charge. This would equate to tougher sentences and potential repercussions.

In addition, in situations where a child is seriously injured or killed through vehicular assault or homicide, the offense would be considered a “serious violent felony”.

As stated, the majority of states in our nation consider having children in the vehicle while driving under the influence to be a much more serious charge than DWI without children. In some states parents can be charged with child abuse or endangerment in situations like this.

DWI charges are a serious matter no matter who is in the vehicle, though. If it is your first DWI case you may find the judge to be slightly more lenient. However, if you have been in the courtroom before for another DUI case, you will definitely see a difference when it comes to sentencing time.

Having an attorney that is willing to completely examine and address all of the evidence against you is crucial when facing any criminal charges. Call me today so we can discuss the particulars of your DWI case. I have handled many such cases in NY courts and want to be the attorney to help with yours.

There has been a lot of discussion and commentary about “texting while driving” and the dangerous involved in this activity. The Syracuse Post Standard notes a Virginia Tech Transportation Instutite Study that texting while driving is even more dangerous than driving while intoxicated (DWI).

While Onondaga County NY has  enacted its own local Texting While Driving (TWD) ordinance ban last month, and a statewide ban has been proposed and is expected to be signed by Governor Paterson.

Yet, there is still a huge disconnect as noted by eminent DWI defense Lawyer Lawrence Taylor.

Typically a texting “offense” is a secondary event, for which they can’t even pull you over and write you a citation unless you are committing some other offense to justify the stop, such as speeding. And the penalty, when it is against the law, is as little as a $50 fine, a civil penalty.

Compare that with a drunk driving charge. In New York, a DWI penalty for a first offense is a 6 month license suspension, up to $1000 in fines, the possibilty of actual jail time, and a criminal record. Not to mention the many thousand of dollars you’ll have to pay for a lawyer, and in extra insurance premiums.

Think of all the thousands of people per year who are arrested for DWI in New York. The majority of them are stopped for relatively minor offenses, like speeding or erratic driving. They may fail a breath test at just over the legal limit of .08% BAC. But the end result in the typical case is that no one is harmed in any way.

So why is a DWI with no accident, injury, or harm a serious criminal offense when a texting offense is a minimal fine and no criminal charge? When texting is deemed to be more dangerous to others on the road?

Something to seriously consider.

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If you are charged with a DWI in New York state, please contact us for a criminal consultation to find out how we can fight your charges and help you through this difficult time. Free consultation.