Articles Posted in DWI/DUI

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As we mentioned in a May entry, Utah has amended its drunk-driving statutes(s) to lower the blood alcohol content (BAC) necessary to take a simple instance of driving with alcohol in your system and convert it into Driving Under the Influence (this is referred to as ‘Driving While Intoxicated’ in New York).  The new standard in Utah is a BAC of .05 of 1 percent.  This makes Utah’s anti-drunk-driving scheme the strictest in the US, as every other state uses a standard based on a blood alcohol content of .08.

We’re taking a follow-up look at the statute, because it may represent the future standard for the rest of the US.  To cite our 2013 entry on the subject yet again, much of the rest of the world has adopted a .05 (or stricter) standard, and the National Transportation Safety Board (NTSB) has been advocating a .05 limit for some time.

Even New York, under Governor Andrew Cuomo, has apparently considered reducing the blood alcohol content necessary to create a per se criminal offense at .05, just as Utah has.  This was according to an article in Glens Falls’ Post Star, entitled “How Low Should It Go? The .05 BAC Debate.”  A change along those lines would seem to be consistent with the anti-impaired driving push reflected in 2012’s ‘3-strikes’ rule. That rule has been discussed several times in this blog, of course; promulgated by the Department of Motor Vehicles without legislative input, the rule delays, or in some cases prohibits, re-licensing for drivers with a history of offenses involving alcohol or drugs.  Its purpose is to keep impaired drivers off the road, and the purpose of a .05 standard is the same.  The Post Star’s article was published in 2013, though, when the National Transportation Safety Board first suggested the .05 standard. New York is still at .08, of course.

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Alice_05a-240 Wide.jpgImage by Sir John Tenniel (“Alice’s Adventures in Wonderland” (1865)) [Public domain], via Wikimedia Commons

Since 2009, New York has required drivers convicted of driving while intoxicated to install ignition interlock devices (IIDs) in any vehicle they either own or operate. Per Section 1193(1)(b)(ii) of the Vehicle and Traffic Law, the minimum period of this restriction will be 6 months, and it can be longer.

You’ll have to submit an affidavit at sentencing. In this affidavit you’ll either provide detailed information about any vehicle you own, or certify that you have no vehicle. The court will give you ten days from sentencing to get an IID installed in any applicable vehicle, but from the moment you’re convicted you must have one in any vehicle you drive. For this reason it’s recommended that you get one installed before sentencing.

There’s another reason to get it installed early, if you decide that it’s inevitable. You get credit for this period even if you haven’t been sentenced yet. (Before you do it, however, be warned: the wording of the statute suggests that – once you get it installed – “the period of interlock restriction” has commenced, whether you’ve been sentenced or not.)

Complying with the interlock requirement costs money, of course, although financial assistance in is available for low-income drivers. A ‘financial disclosure report‘ is available through New York’s Division of Criminal Justice Services. Drivers requesting assistance should fill it out and submit it to the court prior to installation, if they’re getting it installed early, and in any case prior to sentencing.

Once you have your IID installed, all you have to do is figure out how to live with it. And this may or may not be a problem for you, if our clients’ experience is anything to go by. Some of them have had no issues at all. Others have found the devices a chronic headache.
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Stop Castle 2.jpgImage: LeCours Chertok & Yates, LLP, (incorporating an image entitled “Amberly Castle” by Nathaniel Buck, Samuel Buck (British Museum) [Public domain], via Wikimedia Commons)

As we’ve noted before, New York’s Department of Motor Vehicles has ‘gotten tough’ on drivers with a history of alcohol-related incidents. New rules were introduced as an ’emergency’ measure in 2012, and drivers with three or more alcohol-related incidents on their driving records found their applications to be relicensed denied, in some cases permanently. Thanks to these rules, New York may be the toughest state in the union when it comes to relicensing after an alcohol-related conviction.

The new regulations were challenged, of course. Article 78 of New York’s Civil Procedure Law and Rules provides a vehicle for testing the legality of administrative actions, and aggrieved (former) motorists have taken full advantage of it. At least five of these Article 78 petitions have made it through the system, from initial filing to (predictable) denial: Brown v. New York State Dept. of Motor Vehicles in Nassau County; Gaebel v. New York State Dept. of Motor Vehicles in Sullivan County; Carney v. New York State Dept. of Motor Vehicles, in Albany County; and Acevedo v. New York State Department of Motor Vehicles and Allen v. NYS Dept of Motor Vehicles, both filed in Albany County.

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In our entry of March 13, 2014, we discussed ‘boating while intoxicated’ and/or the consequences of whetting your whistle on the water. We look this week at the sorts of trouble you can get into – without getting your feet wet – all in the name of having a good time.

The law clearly tries to cut the recreational vehicle user some slack. As we pointed out last time, convictions for ‘boating while intoxicated’ or for ‘snowmobiling while intoxicated’ aren’t currently reported to DMV. And, as we’ll see below, you can get away with some things on your own property that would be offenses anywhere else. Things have tightened up a bit over the last ten years, though.

Once upon a time, you couldn’t commit vehicular assault or vehicular homicide with a boat or a snowmobile. We’re linking here to People v. Davis, an appellate decision from 1991. The court there considered (and dismissed) the argument that a snowmobiler might be convicted of vehicular homicide.

Decisions like Davis were implicitly overruled by ‘VaSean’s Law‘, which was passed in 2005, and made changes to the laws concerning vehicular assault and homicide (see, for instance, Penal Law Sections 120.03 and 125.12). These statutes now explicitly apply to boats, snowmobiles, and all-terrain vehicles.

Like so many things, of course, one of the keys to committing these crimes is alcohol. So we thought we’d examine some of the mischief you can do with an All-Terrain Vehicle, after we say good bye to winter with a brief glance at snowmobiling while intoxicated.
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A recent story in the Utica Observer Dispatch reminds us that it isn’t always winter in upstate New York. Spring will come, the piece suggests – a time when snowmobilers will regretfully put away their noisy machines, and boaters will again take to the mountain waters.

It also reminds us that alcohol and just about any recreational activity don’t mix.

The story concerns Janelle Nixon, who was accused last summer of ramming another boat with her own, while drunk, and injuring two people. She was not accused of harming anyone intentionally. “Very simply,” said her attorney, who was quoted in the article, “she had never driven a boat before, was unsure where the controls were and what they actually did.” There was also evidence, apparently, that she had been drinking.

Ms. Nixon ultimately pled guilty in Herkimer County Court to assault in the third degree and ‘boating while intoxicated’; these are misdemeanors. She had faced even more serious charges, according to an earlier article in the Adirondack Express.

Those original charges had included operating a vessel while intoxicated; operating a vessel with .08 percent or more of 1 percent of alcohol; and two counts of vehicular assault in the second degree. The alcohol-related charges are both misdemeanors, but vehicular assault 2nd is an E felony; the maximum sentence is 1 1/3 to 4 years in state prison.

‘Operation of a vessel while under the influence of alcohol or drugs’, more commonly known as ‘boating while intoxicated’, is defined in Section 49-a of New York’s Navigation Law, and its language closely tracks that of the state’s DWI/DUI statute, Section 1192 of the Vehicle and Traffic Law. Operating a vessel when you’re impaired by alcohol to any extent is a violation. This parallels subsection (a) of Section 1192. And, as in subsections (2), (3) and (4) of 1192, operating a vessel with .08 percent or more of 1 percent of alcohol and/or ‘in an intoxicated condition’ and/or ‘impaired by the use of a drug’ is a misdemeanor, if it’s a first offense. A second conviction of any of these – initially misdemeanor – offenses within 10 years is a felony.
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This is the third in a series of entries about the US Constitution’s ‘confrontation clause’. In May we published a very brief overview and history of the provision, which is found in the Sixth Amendment, and in August we got into the nuts and bolts of Crawford v. Washington, a Supreme Court case that set the stage for today’s ‘confrontation clause’ confrontations.

That decision concluded that “where testimonial evidence is at issue” the Sixth Amendment demands, in its simplest terms, an opportunity for cross-examination. Crawford didn’t tell us, though, just what’s included in that term ‘testimonial’, and how ‘non-testimonial’ hearsay might be treated by individual states.

Which brings us once again to People v. Pealer, a recent decision from New York’s highest court, the Court of Appeals.

In our September 5th entry, we addressed a secondary topic noted in Pealer: the fact that driving around with a transparent sticker on your rear window is actually illegal. This time around we’ll take a quick look at the primary issue in the case.

Robert Pealer, the defendant, had been charged with driving while intoxicated. How did the People know he was intoxicated? A breathalyzer test. How did they know the breathalyzer was working properly? A ‘certificate of calibration’, a ‘certificate of maintenance records’, and a certification of the sample of the simulator solution used in the machine – a rubber stamp, essentially.

Not surprisingly, Mr. Pealer didn’t think this was sufficient. He thought he had a right to cross examine the person or persons who prepared those certificates. But he was wrong, according the the Court of Appeals, as we’ll see below.
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Did you know that the college sticker in your car’s rear window is an invitation for any police officer to pull you over? Don’t take our word for it – read the law; you’ll find it (if you look very carefully) in Sub-paragraph ‘(i)’ of Paragraph ‘(b)’ of Subsection ‘(1)’ of Section 375 of New York’s Vehicle and Traffic Law. And the law is very clear: “[t]he use or placing of posters or stickers on . . . rear windows of motor vehicles is . . . prohibited.”

You might want to take a look at Subsection 32 of Section 375 while you’re at it. A sticker in your window can cost you $150 (plus surcharge), 30 days in jail, or both.

While ‘ignorance of the law is no excuse’, though, no one really expects you to read every sentence of every statute ever published. The way a government spreads the word about a law is by enforcing it. So, the real reason you didn’t know you were an outlaw, a scofflaw, and a desperado, is that you never got a ticket for having a sticker in your window. No one ever does get a ticket for it – at least, no one ever gets pulled over for that alone.

The ‘no-sticker’ statute is only used when law enforcement wants to bust your chops over something else.
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The National Transportation Safety Board (NTSB) wants states to make major changes to their drunk driving laws. In a new safety report, Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving, the NTSB has published a wish-list that includes

reducing the per se blood alcohol concentration limit for all drivers; conducting high-visibility enforcement of impaired driving laws and incorporating passive alcohol sensing technology into enforcement efforts; expanding the use of in-vehicle devices to prevent operation by an impaired driver; using driving while intoxicated (DWI) courts and other programs to reduce recidivism by repeat DWI offenders; and establishing measurable goals for reducing impaired driving and tracking progress toward those goals.

What got everyone’s attention was the first item: reducing the per se blood alcohol concentration. The “per se blood alcohol concentration” is the magic number that makes it criminal to drive. Right now, every state in the union has that number set at .08 percent. The NTSB wants to make it .05.

Dozens of countries have already implemented the .05 standard, according to a table available through the International Center for Alcohol Policies’ ‘Drinking and Driving’ webpage. These include such diverse places as Cambodia, Israel, Denmark and Peru. Many countries have even lower tolerances. In Lithuania, for instance, the standard is .04; in Japan it’s .03; in Norway it’s .02; and in Algeria it’s .01.

Would lowering the per se blood alcohol concentration (BAC) really reduce the number of fatalities on our roads? It’s hard to say, as we’ll see below.
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The Cuomo administration has announced a revamp of DMV regulations. The idea is to “strengthen DMV’s ability to keep dangerous drivers off the road for good.”

In the near future, when you apply for a new license after revocation you’ll trigger a lifetime review of your driving record. And if, in your lifetime, you’ve been convicted five or more times of drug- or alcohol-impaired driving, your application will be denied.

Denied, by the way, appears to mean denied. You won’t get a license. Ever.

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We’ve been discussing some legal trials and administrative tribulations faced by our client – you’ll remember that he’d allowed his vehicle to become intimate with a tree under circumstances the police found suspicious. Following a ‘report of refusal’ alleging that our client had refused to take a chemical test of his blood alcohol content, and an initial hearing at which the arresting officer didn’t appear, our client was sent on his way. His license, which had been suspended, was reinstated, and everything was fine, license-wise.

But only for the moment. The man was still facing criminal charges, and even if the criminal action should end in a favorable disposition (it didn’t) the administrative proceeding was bound to go on. In fact, a favorable disposition on the underlying charge would just increase the stakes at a refusal hearing. We are by no means the first to point out that if you win at trial, but lose a refusal hearing, you aren’t eligible for any conditional or restricted license. So in practical terms, you may find yourself worse off than if you’d been convicted.

Our client didn’t have that problem. As we mentioned last time, he ultimately made his peace with the authorities, and took his lumps, including a six-month license revocation (with a conditional license to get to and from work).

The decision our client had to make was whether to go ahead with the refusal hearing. He was of course already on a six-month revocation for DWI. If DMV found that he’d refused the chemical test, he was looking a year on top of that. However, a refusal revocation can run concurrently with a DWI revocation. This meant that if he were to withdraw his request for a hearing – in other words, admit a refusal – he would get credit for every day of the refusal revocation that overlapped with the DWI revocation.
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