Will You Be Required to Complete an Alcohol Evaluation if Arrested for DWI?

In NY it's mandatory (VTL 1198-a) that anyone arrested for a violation of VTL 1192 (alcohol and drug related driving offenses) complete, at a minimum, an alcohol and substance abuse screening. Whether you will be required to do more than that depends on what category you fall into below.

1.    1198-a.2(a) - Mandatory Screening (an initial intake to determine if counseling/treatment is necessary):

A.   A screening will be ordered by the court if you are arraigned upon or have pleaded guilty to any of the following offenses as first offense AND you are alleged to have a blood alcohol content (BAC) of less than 0.15:

(i)            DWAI (1192.1), or

(ii)          per se DWI (1192.2), or

(iii)         common law DWI (1192.3), or

(iv)         Leandra's Law violation (1192.2-a(b))

B.   OR if you are arraigned upon or have pleaded guilty to a violation of DWAI-Drugs (1192.4);

C.   OR if you refused the chemical test.

2.    1198-a.2(b) - Mandatory Assessment (more formal interview that will likely result in continued counseling/treatment):

A.   You will be required to complete an assessment if:

(i)            the screening required by subsection 1198-a.2(a) above indicates possible alcohol or substance abuse; or

(ii)          upon your arraignment or guilty plea to a second or subsequent offense within 5 years of

1.    DWAI (1192.1), or

2.    per se DWI (1192.2), or

3.    common law DWI (1192.3),

4.    or DWAI-Drugs (1192.4), or

5.    Zero Tolerance violation (1192.4-a);

B.   OR if you have been convicted within the previous 5 years of:

(i)            any violation of VTL 1192, or

(ii)          Vehicular Assault in the 1st or 2nd degree, or

(iii)         Aggravated Vehicular Assault, or

(iv)         Vehicular Manslaughter in the 1st or 2nd degree, or

(v)          Aggravated Vehicular Homicide;

C.   OR if you have been convicted two or more times within the previous 10 years of:

(i)            any violation of VTL 1192, or

(ii)          Vehicular Assault in the 1st or 2nd degree, or

(iii)         Aggravated Vehicular Assault, or

(iv)         Vehicular Manslaughter in the 1st or 2nd degree, or

(v)          Aggravated Vehicular Homicide;

D.   OR of you are arraigned upon or have pleaded guilty to a DWI related offense and have a BAC of .15 or higher.

3.    Article 21 School/Drunk or Impaired Driver Program (DDP)

You will also be required to participate in an alcohol or substance abuse assessment in order to successfully complete the DDP, which is typically a condition of any sentence for an alcohol or drug related driving offense. Often times the screening or assessment required by VTL 1198-a will satisfy the DDP requirement and save you significant time in completing the process. However, some local courts are still unaware of or simply do not enforce the requirements of VTL 1198-a; it is therefore incumbent upon your DWI defense attorney to advise you of this requirement and hopefully save you time in resolving you DWI case and restoring your license.

Happy 2016 from Catalano & Carpenter LLP!!!

A new year! A time for new exercise routines, getting organized, re-evaluation, and new beginnings!

Don’t start your new year and the first day of the rest of your life off with a DWI arrest, or worse!

Just like every other year, law enforcement officers will be out on increased DWI patrols this holiday. They will be looking for even the smallest reason to pull someone over on the off-chance that person is intoxicated. You know it. Everyone knows it. You’ve seen them out there before. Maybe they’ve even pulled you over in years past for whatever reason. So why be that person this year? You’re smarter than that.

Think you’re good enough to avoid being pulled over? There will also undoubtedly be sobriety checkpoints around. Funny thing about checkpoints, cops like to set them up in a location that limits your ability to avoid it. And flipping a u-turn before you get to it WILL draw the cop’s attention to you.

Personally, I’m not a huge New Year’s Eve fan. I prefer to stay in, have a nice dinner, watch some football, and maybe have a drink or two without the stress of having to drive or be on the road with those people who have no respect for anyone else and are driving while intoxicated. But I get it, it’s a fun holiday! A reason to celebrate! So if you are going out, be sure you have a designated driver (and be sure that DD doesn’t sneak a few drinks), or have money for a cab, or walk, or sleep where you pass out. Just don’t drive after you’ve been drinking.

The consequence of a DWI arrest – before you’ve even been convicted of anything – are severe. They include, at a minimum, suspension of your license or privilege to drive and the significant expenses of 1) obtaining a conditional license, 2) obtaining a substance abuse evaluation and 3) hiring a DWI defense attorney. You’re already looking at several thousand dollars right there, just from being arrested.

And if you’re convicted, forget about it. That’s at least another several thousand dollars in fines, surcharges, fees for classes, another conditional license, the ignition interlock device, DMV administrative fees and the damage to your insurance. Those commercials that get your attention by warning you that even your first DWI can cost you around $10,000 are pretty accurate!! Save yourself the trouble and the money.

Make 2016 your best year yet! Don’t start it in jail, in debt and embarrassed. 

Too Drunk to be Convicted of Drunk Driving???

     

Article: http://www.ledger-enquirer.com/opinion/article41982711.html     

     Apparently the current DUI/DWI law in Georgia is very pro-defendant and permits for the suppression of BAC chemical test results if the defendant was too drunk to provide informed consent for the test!

     So, in other words, if you’re going to drive drunk in GA, you better make damn sure you’re a fall-down, can’t-think-straight kind of drunk so you’ll have a better chance of beating your DWI!

     Seems…counterproductive? Illogical? Or maybe just downright dangerous?!

     Rest assured, that is most definitely NOT the case in New York. That issue was resolved here as far back as 1978. Consent or refusal to provide a sample for a chemical test in New York does not need to be “knowing,” according to the Second Department: “[such an] interpretation would lead to the absurd result that the greater the degree of intoxication of an automobile driver, the less the degree of his accountability.” Matter of Carey v. Melton, 64 A.D.2d 983, ___, 408 N.Y.S.2d 817, 818 (2d Dep’t 1978).

     While many people would agree that if you’re that drunk there’s no way you know what you’re doing (and some of us may even have the stories the back that theory up!), but to old otherwise would truly run the risk of unconscionable results in very serious cases.  

     NOTE: Refusal to consent to chemical test can be determined from both words and conduct in New York. And if the police decide you have refused, there will be a presumption of intoxication and the prosecutor will, in most cases, be able to introduce evidence of your refusal as your consciousness of guilt at any subsequent trial. There are also significant civil penalties if you have been declared a refusal by the DMV. Also, in order to be prosecuted for DWI in NY, your intoxication must be voluntary. If you have any reason to believe that your intoxication was involuntary, discuss that with you attorney immediately. However, alcoholism does not constitute involuntary intoxication under NY law.

     For more information DWI refusals, click here.

     If you have been arrested for DWI or any other alcohol or drug related driving offense in New York, call the experienced DWI defense attorneys of Catalano & Carpenter LLP at (845) 454-1919 today to schedule a free DWI consultation. The sooner we get involved, the sooner we can help. 

Driving While Ability Impaired (DWAI) Is Not a Criminal Offense…Until It Is!

Alcohol and/or drug related driving offenses in New York State run the spectrum from violation level offenses (non-criminal) all the way up to class D felonies punishable by up to seven (7) years in state prison.

In DWI cases that should never see the the light of trial, DWI defense attorneys will typically do everything within their ability to convince the prosecutor and the court to accept a plea to a reduced offense, and, in most cases, Driving While Ability Impaired (“DWAI” or just “AI”) in violation of VTL Sec. 1192.1 is the goal. That’s because a DWAI is, in most cases, a traffic infraction (a violation) that does not result in a criminal conviction (although there are still fines, surcharges, program requirements, license sanctions, and a possibility of up to 15 days in jail). Click here for more information on DWAI.  

However, there are instances when an AI may be prosecuted as a misdemeanor, resulting in a criminal record if convicted, as well as a potential period of incarceration and/or probation in addition to the fines, surcharges, program requirements and license sanctions. 

If you are convicted of an AI offense after having been convicted within the preceding five (5) years of one (1) prior alcohol or drug related driving offense as defined in VTL Sec. 1192 (e.g., DWAI, DWI, Agg DWI, DWAI-Drugs), it will still be a conviction of a traffic infraction but with more substantial fines and penalties than the first time around. 

BUT! If you are convicted of an AI offense within the preceding ten (10) years of having been convicted of two (2) prior alcohol or drug related driving offenses as defined in VTL 1192, that new AI can be prosecuted as a misdemeanor! So long story short, two AI strikes and you’re out! And unless you've read this article or the NYS VTL - and who does that other than attorneys - you really wouldn't have a reason to know this!  

But not knowing about this enhanced prosecution possibility, or worse, hiring an attorney who doesn’t know about it because he or she is not an experienced DWI defense attorney, can catch you by surprise if you have prior convictions. And no one wants to be surprised when it comes to their license, livelihood and life! 

            Also keep in mind that Driving While Ability Impaired by Drugs ("AI-Drugs"), defined in VTL Sec. 1192.4, is NOT the same as DWAI (VTL Sec. 1192.1). If you are arrested for and charged with a violation of AI-Drugs, you are fighting a misdemeanor from the get-go. And the consequences of an AI-Drugs conviction are significantly different from a misdemeanor DWI conviction, and a LOT different from an AI conviction. 

DWI is a serious charge with serious consequences. If you have been arrested and charged with DWI or any other alcohol or drug related driving offense in New York State, call the experienced DWI defense attorneys at Catalano & Carpenter LLP at (845) 454-1919 today! The sooner we get involved, the sooner we can help. 

You Can Huff and You Can Puff, but Sooner or Later the Legislature Will Blow Your House Down!

     Although this case/decision is out of Montana, it's still relevant to DWI law here in NY. Long story short, the issue before the court in Montana was whether an ingredient in an aerosol product that allegedly causes impairment (from huffing) but does not clearly fit within the definition of a “drug” under Montana law can still serve as a “drug” for purposes of a DUI prosecution. The court held that it can.

     New York State has been dealing with a similar quandary for some time now. Virtually every section of NY VTL Sec. 1192 that references impairment by drugs limits a prosecutable drug to those specifically enumerated in Sec 3306 of the NY Public Health Law (“PHL”), referred to as controlled substances. For example, VTL Sec. 1192.4, Driving While Ability Impaired by Drugs, states that “No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.” VTL Sec. 114-a contains the definition of a “drugs”: “The term ‘drug’ when used in this chapter, means and includes any substance listed in section thirty-three hundred six of the public health law.” So if it turns out that a driver is in fact impaired by a substance but that substances is not specifically listed in PHL 3306, they cannot be prosecuted for a drugged driving offense…that is unless the driver is charged with violating VTL Sec. 1192.4-a, generally referred to as a Combined Influence DWI. Then all bets are off!

     VTL Sec. 1192.4-a does not specifically limit the term “drug” to those listed in PHL 3306. The language of the statute instead merely prohibits driving drunk while also impaired by “any drug or drugs.” Does this mean that if you’re intoxicated AND impaired by a drug, it can be ANY drug? This has been the debate here in NY for a while now, and there are some who say yes! And there are also some who say no!

     The Sullivan County Court (Hon. Frank LaBuda) held in 2007 that the statute (VTL Sec. 1192.4-a) is limited only to those controlled substances listed in PHL 3306 (since every other use of the term “drug” throughout the chapter directly incorporates PHL 3306). However, not very long thereafter, in 2008, Hon. Matthew Sciarrino, Jr. of the NYC Criminal Court, Richmond County, held just the opposite when he decided that an 1192.4-a prosecution could continue despite the fact that the drugs the defendant admitted to consuming were not controlled substances pursuant to PHL 3306. The basis for his decision? VTL Sec. 1192.4-a did not specifically incorporate PHL 3306 into its language.

So there ya go, two sides to the same coin.

     But have no fear. The NYS legislature has put the wheels in motion to broaden the scope of offense punishable as DWIs! There is a bill pending now that would expand both VTL 1192.4 (DWAI-Drugs) and 1192.4-a (Combined Influence) to permit prosecution for DWI offenses involving literally any drug that has the potential to impair a driver’s physical and/or mental abilities. While not necessarily good news for New York Drivers who are on prescriptions medications (which today seems to be plenty of people…and plenty of medications!), I believe the immediate result of this new legislation (if it passes) will be increased litigation concerning every aspect of non-schedule controlled substances and their effects, and how the prosecution can even prove impairment from an inhalant, a substance that in most instances dissipates almost immediately. Should be fun for us defense attorneys though!

Here's the article: http://www.greatfallstribune.com/story/news/local/2015/06/10/supreme-court-huffing-can-lead-dui-charge/71012998/

Close Call Indeed!

The guy in the article below, Mr. Green, very narrowly avoided a DWI prosecution thanks to a very honest witness. And avoiding a DWI in NJ is like a near-death experience, so this guy should count his blessings, and be incredibly grateful no one (other than him) was hurt!

(As someone who I greatly admire once said with regard to NJ and its DWI laws: "You ask what happened to the former Soviet Union? It became the state of New Jersey!")

Had the witness positively identified Mr. Green as the driver who struck the pole, he would have had a much more unpleasant evening, most likely having been arrested and processed for DWI in addition to the other summonses he was ultimately issued.

So why wasn't he arrested for DWI when he admitted to the police six days later that he actually was driving the truck? Since the witness was unable to ID Mr. Green at the time, and Mr. Green was already in his home (creating an issue of access to alcohol and a timeline problem), the police lacked probable cause to arrest Mr. Green for DWI and were consequently prohibited from administering any field sobriety tests or determining his BAC. Since the requirement for a DWI prosecution is that you be intoxicated WHILE operating a vehicle, the circumstances prevented the officers from attempting to determine Mr. Green's BAC or degree of impairment at any time remotely related to when he operated his vehicle.

Hopefully Mr. Green will fully appreciate the "break" he was given here and think twice before driving while intoxicated (or even while his ability is impaired) in the future.

Here's the article:

http://www.nj.com/cumberland/index.ssf/2015/06/stumbling_bleeding_man_unable_to_recall_drunk_driv.html

I’m (Drunk) On a Boat!

Warm weather is finally here in NY! Well, on most days, anyway. And thankfully warm weather means beaches and boats! And in a lot of instances, boats come stocked with beer! But be careful if you plan to have a drink or two out on your motor boat this summer, you motorboatin’ sonofagun, particularly if you’re the one driving. Although you may not be in a car or on a public highway when you’re tooling around checking out the girls in bikinis, you can still be arrested for operating a motorized vessel in an intoxicated or impaired condition, a BWAI (Boating While Ability Impaired) or BWI (Boating While Intoxicated). A BWAI is a violation level offense, but a BWI is a misdemeanor just like a DWI, which can result in a criminal record and suspension of your privilege to operate a motorized boat. Multiple BWI convictions can also result in a felony charge.

Many courts (and prosecutors) are not very familiar with BWI offenses. It is therefore critical that your BWI defense attorney is knowledgeable in all aspects of Boating While Intoxicated offenses. If you have been charged with a BWAI or BWI, call us today at (845) 454-1919 to schedule a free consultation.