Articles Posted in DWI/DWAI

The New York State Senate approved a bill on June 6, 2007 that would toughen penalties for drunken drivers who kill or cause serious injury. Under the new statute, which is now under consideration by the New York State Assembly, intoxicated drivers who kill would be charged with aggravated vehicular homicide, which carries a penalty of up to 25 years in prison. This charge would apply to drivers with a prior DWI conviction within 10 years, a blood alcohol content of 0.18 or higher, or a suspended license. Additionally, the aggravated vehicular homicide charge would apply if more than one person was killed.

The new statute in New York would also permit prosecutors to charge drunken drivers who seriously injure others with aggravated vehicular assault, which carries a 15 year maximum jail term. This provision would be applied under the same circumstances as the aggravated vehicular homicide charge. Lawmakers want the bill to signed into law by June 21, 2007, the end of this year’s legislative session. The new law would take effect on November 1, 2007. The Senate also approved a bill that would mandate that prior DWI convictions be considered during sentencing in a subsequent conviction.

The National Highway Traffic Safety Administration conducted an analysis of drunk driving fatalities NHTSA using a statistical analysis called the “Fatality Analysis Reporting System” or “FARS.” The study reviewed fatal crashes of passenger cars, SUVS, pickup trucks, vans and motorcycles for the years 2000-2004 and age groups of under 20, 20-29, 30-39, 40-49, 50-59 and over 59.

The significant findings of this study of DWI fatalities are as follows:

The age groups with the largest driver alcohol involvement in fatal passenger car crashes were 20-29 and 30-39.

For motorcycle operators, the age groups with the largest alcohol involvement were 30-39 and 40-49.

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Since September of 2006, there have several cases of mothers driving while intoxicated with their children in the car. Most tragically, Ann Marie Ciarcia, of Yorktown Heights, New York was driving while intoxicated last September after a night of drinking and partying with her daughter and daughter’s friend, 16 year old Emily Cornish. Ms. Ciarcia’s blood alcohol level was .15, nearly twice the legal limit of .08, when she began traveling northbound in the southbound lanes of the Saw Mill Parkway and crashed her minivan into a Honda Odyssey driven by Edward Cook, a Yorktown resident who was on his way to work.

The head on collision killed Ms. Cornish, who was the only child of Carol Cornish. Ms. Cornish informed the Court that although she had forgiven Ms. Ciarcia, she felt that Ciarcia needed to be held accountable.

The Yorktown Heights mom who pleaded guilty to second-degree manslaughter, second-degree vehicular assault and driving while intoxicated was sentenced to 16 months to 4 years in state prison Friday.

Ciarcia’s husband will now care for their four children, who are all in therapy.

In December of 2006, Jeanine Chrysogelos, a Somers, New York resident, was arrested for driving while intoxicated with her two children in the car.

State troopers say Ms.Chrysogelos drove her two children home from school Wednesday after she had been drinking. Authorities say she passed out in the driveway while her sons ran to a neighbor’s house to call for help. Police say Chrysogelos had a blood alcohol level three times the legal limit. Chrysogelos was charged with aggravated DWI ( a blood alcohol level of .18 and above) and two counts of endangering the welfare of a child. Ms. Chrysogelos was not permitted to visit with her family the weekend of the accident and during Christmas.

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The rules governing driving while intoxicated (“drunk driving”) in the State of New York are contained in the Vehicle and Traffic Law, from sections 1192 through 1199. To be charged with DWI in New York, the operator of a motor vehicle must have a blood-alcohol concentration (BAC) at or above .08 percent in the person’s blood or urine. This is measured by chemical testing of the person’s blood, breath, urine or saliva. Frequently, when a driver is stopped for an alleged DWI violation, they are asked to perform a test, known as a “Field Sobriety Test”.

The Field Sobriety Test can include any of the following: Checking the person’s balance, (request to stand on one leg) coordination, requesting that he or she count forwards, and backwards, or recite the alphabet in the same fashion. Additionally, the police officer may ask the driver to take a simple breath test known as an “Alco-Sensor.” If the officer determines that the driver has failed the Field Sobriety Test, they are arrested and brought to the local precinct.

Importantly, the results of the hand held Alco-Sensor breath test are not admissible in Court. Thus, within 2 hours of arrival at the precinct, the driver will be asked to submit to a chemical test by either a breathalyser, or a sample of their blood or urine. It is in this stage of the process that the charges frequently become more serious. The officer will request that the driver submit to the breathalyzer. The driver will often state: “I already did that when I was arrested.”, not realizing that the Alco-Sensor is a not the same as a breathalyzer, and that they are now in the process of a “refusal.”

The refusal to take a breathalyzer, or submit blood or urine samples, has separate and additional consequences, leading to additional fines, the potential revocation of the driver’s license, and the requirement to appear for a “Refusal Hearing” before an administrative judge at the Department of Motor Vehicles. The refusal hearing must be held within 15 days of arraignment.

At the arraignment, the person will be required to surrender their driver’s license, pending the outcome of the criminal charges. The critical issues at the inception of the criminal case are twofold. A check is made to determine if the driver has a criminal background (commonly known as a “rap sheet”). Secondly, the results of any chemical test must be evaluated and exchanged with the lawyer representing the driver. Generally speaking, neither the rap sheet nor the chemical test results are available at the time of arraignment.

If the rap sheet comes back “clean” (no prior convictions for alcohol related offenses), and the findings of any chemical test show that the driver had a blood alcohol level of .08 or less, and there has been no serious injury or property damage, the charges are generally reduced to driving while ability impaired, or “DWAI.” This reduction in the charges is critical for several reasons. First, the DWAI is a violation, not a misdemeanor. Secondly, the fines are significantly less for a DWAI than a DWI. Third, the driver’s license is suspended for three months, rather than the 6 month revocation of the license for conviction of a DWI.

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