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DWI Law Update: IIDs, Portable Breath Tests and Driving – What We Need to Know. What is "Leandra's Law"?.

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what is leandra s law
What is "Leandra's Law"?

Leandra's Law was signed into law on November 18, 2009 in honor of Leandra Rosado. Leandra was an 11-year old killed while she rode in a vehicle with the intoxicated mother of one of her friends. In response to this tragedy, the NYS Legislature made several changes to the Vehicle and Traffic Law (VTL).

leandra s law included two main provisions
Leandra's Law included two main provisions:
  • Aggravated DWI/Child in Vehicle. The law establishes this new Class E Felony. The law states that no person shall operate a motor vehicle under the influence of alcohol or drugs while a child who is 15 years of age or younger is a passenger in the vehicle.
  • VTL § 1192(2-a)(b)]
slide4
And…
  • Ignition Interlock Requirement
became effective aug 15th
Became Effective Aug 15th
  • Starting on August 15, 2010, every case with a VTL 1192(2), (2-a), or (3) plea (or post-trial conviction to those charges) AND where the defendant has not yet been sentenced, must include a conditional discharge or term of probation AND a condition of such sentence must be the installation of an ignition interlock device.
  • Applies to cases where the date of occurrence was on orafter November 18, 2009.
does not apply to
Does Not Apply to:
  • VTL 1192(1),
  • 1192(4) or
  • 1192(4-a).
mandatory
Mandatory
  • There is no judicial discretion in the legislation.
  • Not for first time offenders, not for out of state drivers, not for out of NYC drivers that were visiting at the time of the incident, not where the defendant's license is revoked for 6 months and he promises not to drive during the revocation.
  • Everyone pleading to those three charges must be sentenced under these new procedures.
what is discretionary
What is Discretionary

Term of the Ignition Interlock (IID) condition - here there is discretion. The minimum must be at least 6 months, but it can be up to the duration of the revocable sentence imposed (i.e. one year for a c.d. and 3 years for probation.)

the new creation dwi splits
The New Creation - DWI Splits
  • Under the PL, the maximum jail time on a misdemeanor split sentence (with probation or a CD) is 60 days. That has now changed with DWI pleas to 1192(2), (2-a) and (3). According to newly enacted PL 60.21, it is being read to permit two significant changes.
    • First - a CD or probation term must be imposed even if a jail term of up to one year is imposed. [So even though the maximum split sentence on a penal law felony is six months, a DWI misdemeanor split can be a 9 month split, a one-year split, etc.]
second
Second….
  • unlike with Penal Law splits, the CD or probation sentences on these DWI splits are to run consecutive to the jail term.
types of iids
Types of IIDs
  • 2 that will be available in NY: Class I and Class III devices.
  • Some say Class I is appropriate for first time offenders, while the Class III device is the most appropriate for the repeat offenders.
  • Most if not all judges are all ordering Class III in all cases.
approved devices
Approved Devices
  • Of the 9 devices that have been approved for use in New York State, 4 are class I devices and 5 are class III devices. There are no approved Class II devices. In general, class III devices are more expensive than class I devices.
  • Details on the features of each approved device are available at http://dpca.state.ny.us/pdfs/allignitioninterlockdevicesavailableandfeaturesasof15Aug2010.pdf.
class i
Class I
  • A Class I device has the following features: 1) meets all New York State Department of Health and National Highway Traffic Safety Administration Regulations and Standards, 2) utilizes fuel cell technology; 3) Reporting capabilities; 4) capabilities for storage of data; 5) programmable Re-Test Sequences; 6) data download; 7) inspection and re-calibration service, and 8) anti-tampering and anti-circumvention features.
class ii
Class II
  • A Class II device has all the same features as a class I device plus photographic positive identification capability (camera or biometric facial recognition).
class iii
Class III
  • A Class III device has all the same features as Class I and Class II devices plus: 1) GPS location of vehicle capability; 2) real time data reporting; 3) Infra-red or other low-light camera capability for night use; 4) Hum Tone Detection; 5) Infra-red sensor that detects heat and proximity to verify human breath; 6) keys enabling service codes to be entered
class iii continued
Class III Continued
  • 7) early recall system if a fuel cell fails-uses split cell technology; 8) restricted drive time capabilities; 9) unlock code to minimize towing due to lockouts;10) voice instruction, 11) probation/Judicial Internet Access for Real-Time Monitoring 24/7; 12) 911 Emergency Response Program for Interception of a Targeted Vehicle During a Rolling Re-test Failure, and 13) Target Tracking
how the iids work
How the IIDs Work
  • A defendant with an IID has to blow into the device to start the car and his BAC needs to be less than a .02. (This apparently factors in for things like mouthwash or cough syrup being used normally.) If he fails, he will be prompted to take a re-test within approximately 15 minutes. If he fails again or does not take the re-test, the car goes into "lock out mode" and only the IID maintenance people can get a car out of lockout mode (for an additional fee, of course, and a report to the NY County IID Monitor).
rolling tests
Rolling Tests
  • IID will also prompt the driver to conduct a "rolling test" which occurs every 30 minutes or so while the car is being operated. When that happens, the defendant again takes the test
failing rolling test
Failing “Rolling” Test
  • A re-test is prompted but if the driver fails the "rolling re-test" the car begins to give off what is described as an unbearable sounding, high-pitched horn/whistle/squelch that was made to “force” the driver to immediately pull the car over and get out to escape the sound.
  • Once shut off the car goes to lock out mode.
costs
Costs
  • Approximately - installation fee for a Class I device is in the $75 - $80 range, with a monthly maintenance fee of between $69 and $75.
  • The Class IIIs are more expensive, with an approximately $100 installation fee and a monthly maintenance fee between $75 and $110. Like all things the “hope” is that competition will make prices competitive.
service centers
Service Centers
  • OPCA has released a list of ignition interlock device service centers (as of August 17, 2010), which is organized by county. The list is available at http://dpca.state.ny.us/ignition.htm.
can t afford
Can’t Afford?
  • Some arrangement has been made with the state and the IID manufacturers/installers that they would absorb some percentage of free IIDs, and the court has the discretion to either set up a payment plan that the defendant can afford (extended, for example, beyond the term of the IID, so that a defendant with a 6 month term of IID could pay it over the 12 months of the cd or the 36 months over the term of the probation sentence) or grant a fee waiver.
a hearing
A Hearing?
  • OCA and DPCA (Division of Probation and Correctional Alternatives) have come up with a Financial Disclosure Form which is two pages long.
  • No magic formula to determine whether or not a defendant truly cannot afford an IID, a fully completed form will provide the court with substantive financial information (which has been self-reported by the defendant and with no means of verification).
new forms
New Forms
  • The ACD/CD form is being changed to include a check box for IIDs. There are check boxes for duration of 6 months, one year, or other
  • A new form entitled "Orders and Conditions of Probation or Conditional Discharge Related to Ignition Interlock Devices" has been developed.
consequences
Consequences
  • If a person fails to provide proof of installation, absent a finding of good cause for the failure which is entered in the record, the court may revoke, modify, or terminate probation or conditional discharge as provided by law.
from division of criminal justice memo of 3 30 11
From Division of Criminal Justice Memo of 3/30/11
  • In recent months, a surprisingly large number of DWI offenders have not installed ignition interlock devices, representing that they no longer “own or operate” a motor vehicle, and that they will not do so during the time period the Ignition Interlock Device is required. Nevertheless, the condition is imposed on their driver’s license and record. The IID license restriction attaches to their driver’s license and record even if they do not “own or operate” a motor vehicle.
slide29
In the past, this license restriction was automatically removed by DMV after set periods of time which did not necessarily correspond with the actual periods of time during which the restriction was applicable. At OPCA’s [The Division of Probation and Correctional Alternatives (DPCA) is now known as the Office of Probation and Correctional Alternatives (OPCA)] request, DMV changed this protocol, leaving the restriction in place until officially notified by the court, probation or other monitor that the time frame for IID provisions of the sentence had expired.
on probation
On Probation
  • If the operator is on probation, the probation department must adhere to 9 NYCRR Part 352 (Graduated Sanctions and Violations of Probation).
slide31
VTL § 1198(9)(d): A person who is subject to a court ordered ignition interlock device who operates a motor vehicle without such a device (except for employer vehicles under certain circumstances discussed below) is guilty of a class A misdemeanor. (Effective December 18, 2009)
  • It was already an unclassified misdemeanor to violate VTL § 1198(7)(a): “Any requirement of this article or the penal law that a person operate a vehicle only if it is equipped with an ignition interlock device shall apply to every motor vehicle operated by that person, including, but not limited to, vehicles that are leased, rented or loaned.”
defendant s obligations
Defendant’s Obligations
  • The defendant must install a functioning ignition interlock device in all vehicles he/she owns or operates within 10 business days of the condition being imposed by the sentencing court, or if sentenced to imprisonment, upon release. [9 NYCRR 358.7(c)(1)]
proof
Proof
  • The defendant must provide proof of installation to the court, probation, and any other designated monitor within 3 business days of installation.
vtl 1198 4 a
VTL § 1198(4)(a):
  • If the defendant fails to provide proof of installation, absent a finding (entered in the record) by the court of good cause for the failure, the court may revoke, modify, or terminate the defendant’s sentence of probation or conditional discharge.
vtl 1198 3 c
VTL § 1198(3)(c)
  • provides that the DMV commissioner may revoke a post-revocation conditional license for sufficient cause, which includes failure to install or maintain a court ordered ignition interlock device.
court should order the defendant when he she is sentenced that
Court Should order the defendant when he/she is sentenced that:
  • The defendant must install an ignition interlock device in all motor vehicles that he/she owns or operates, including vehicles that are leased, rented, or loaned.
also now class a misdemeanors vtl 1198 9 e
Also now class A misdemeanors. [VTL § 1198(9)(e)]
  • No person whose driving privilege has been restricted by VTL article 31 or the Penal Law shall request, solicit or allow any other person to blow into an ignition interlock device or to start a motor vehicle equipped with the device for the purpose of providing the person so restricted with an operable motor vehicle;
vtl 1198 9 e
[VTL § 1198(9)(e)]
  • No person shall blow into an ignition interlock device or start a motor vehicle equipped with the device for the purpose of providing an operable motor vehicle to a person whose driving privilege is so restricted; and
vtl 1198 9 e39
[VTL § 1198(9)(e)]
  • No person shall tamper with or circumvent an otherwise operable ignition interlock device.
employee s vehicles
Employee’s Vehicles
  • If a person who is subject to an ignition interlock condition must operate his/her employer’s motor vehicle in the course and scope of his/her employment, the person may operate the vehicle without an ignition interlock device only during the course and scope of such employment and only if:
vtl 1198 8
VTL § 1198(8)
  • the employer has been notified that the person’s driving privilege is restricted; and
  • the person provides the court and the probation department with written documentation indicating that the employer knows of the restriction and has granted permission for the person to operate the employer’s vehicle without the device only for business purposes.
employer s vehicle
Employer’s Vehicle
  • The person must notify the court and the probation department of his/her intention to operate the employer’s vehicle.
  • The employer vehicle exception does not apply when the motor vehicle is owned by a business entity and the entity is all or partially owned or controlled by the person subject to the ignition interlock condition.
administrative regulations
Administrative Regulations
  • See 9 NYCRR 358.3
  • VTL § 1193(1)(g) requires OPCA to promulgate regulations “governing the monitoring of compliance by persons ordered to install and maintain ignition interlock devices to provide standards for monitoring by Probation
9 nycrr 358 4
9 NYCRR 358.4
  • Counties were required to create program plans regarding usage of ignition interlock devices and monitoring of operator compliance, which had to be filed with OPCA by June 15, 2010 to be effective on or before August 15, 2010. Counties were required to consult with the probation director, the district attorney, the sheriff or police commissioner, the STOP-DWI coordinator, a representative of its drinking driver program, a superior and local criminal court judge designated by the deputy chief administrative judge, and a representative of an agency providing public defense services designated by the county executive.
county plans
County Plans
  • County plans will be/are available on OPCA’s website at http://dpca.state.ny.us/ignition.htm.
  • Get your County’s plan if you haven’t seen it.
  • There is one plan for NYC
further resources
Further Resources
  • The National Highway Traffic Safety Administration website includes several publications regarding ignition interlock devices
  • Ignition Interlock Devices- What You Need to Know: A Toolkit for Policymakers, Highway Safety Professionals, and Advocates (http://www.nhtsa.gov/staticfiles/nti/impaired_driving/pdf/811246.pdf)
  • Key Features for Ignition Interlock Programs (http://www.nhtsa.gov/staticfiles/nti/impaired_driving/pdf/811262.pdf)
  • The Use of Alcohol Ignition Interlocks for Reducing Impaired Driving Recidivism (http://www.nhtsa.gov/Driving+Safety/Impaired+Driving/The+Use+of+Alcohol+Ignition+Interlocks+for+Reducing+Impaired+Driving+Recidivism)
  • http://itunes.apple.com/us/podcast/new-york-state-division-criminal/id377702406
slide49
IIDs
  • All of the devices certified for use in New York State use fuel cell technology. Most states are moving away from the other ignition interlock devices that use semiconductor technology. A basic description of both types of ignition interlock devices is provided in the Traffic Injury Research Foundation’s 2001 publication, Best practices for alcohol interlock programs, which is available at http://www.interlocksymposium.com/site/ywd_acs_corporation/assets/pdf/2000_BestPracticesReport_-_Douglas_J._Beirness.pdf.
nysdh
NYSDH
  • The New York State Department of Health is responsible for creating certification criteria and testing requirements for ignition interlock devices. Those criteria and requirements appear in 10 NYCRR Part 59
nhtsa
NHTSA

The current National Highway Traffic Safety Administration (NHTSA) model specifications for breath alcohol ignition interlock devices were published in 1992. See 57 Fed Reg 11772 (1992). In 2006, NHTSA published a notice in the Federal Register asking for comments regarding the 1992 specifications. See 71 Fed Reg 8047 (Feb. 15, 2006) (available through GPO Access [www.gpoaccess.gov]). The 1992 specifications appear as an appendix to the 2006 notice.

additional resources
Additional Resources
  • Links to additional information and materials about ignition interlock devices is available on NYSDA’s website at http://www.nysda.org/html/ignition_interlock.html.
some other issues
Some other Issues
  • Express consent to blood draw does not require arrest
  • When a defendant expressly consents to a blood draw, the lack of arrest does not make the subsequent taking of blood invalid.  In People v. Centerbar (80 AD3d 1008 3d Dept 2011), the Defendant was taken to the hospital after his motorcycle crashed, killing his passenger.  At the hospital, the Defendant consented to a blood draw.  On appeal, he argued that the blood draw was unlawful because the police had not arrested him first.  
decision
Decision
  • The Third Department rejected this argument.  The requirements of (1) a valid arrest and (2) a blood draw within two hours of the arrest are only for an application of the state's implied consent law.  "[T]he arrest requirement in the implied consent law, like the two-hour time frame therein ... has no application where a driver expressly and voluntarily consents to the administration of a blood alcohol test."
pain ok sedation maybe not
Pain ok – Sedation – maybe not
  • The court went on to conclude that the Defendant's consent was the product of free will.  Although in pain, the Defendant was communicative, not restrained, and not sedated.  The Defendant was fully alert.  The consent was obtained prior to the Defendant's condition deteriorating, which required emergency surgery.  
portable breath test
Portable Breath Test
  • Results - Admissible or not?
for example alcosensor iii
For Example – Alcosensor III
  • The Alcosensor III employs fuel cell technology which detects alcohol and not acetone or other substances commonly found in the breath. The fuel cell is a porous disk saturated with an electrolyte and mounted in a valve assembly. The Alcosensor III receives a fixed volume sample over the surface of the fuel cell. Alcohol that contacts the fuel cell surface is chemically analyzed. Each alcohol molecule analyzed frees electrons during the process. The amount of measured electrons produces a digital Breath Alcohol Concentration that is reported in the three digit display screen.
slide59
Also….
  • The Alcosensor III units do require regular maintenance and calibration. Calibrations should be conducted with an approved wet bath simulator or a dry gas standard
  • So results – admissible or not?
hampe case
Hampe Case
  • In a prosecution for driving while intoxicated, test results from PBT were properly received in evidence notwithstanding the absence of any expert testimony
  • Court dispensed with the scientific foundational evidence (expert testimony) as it’s general acceptance in the scientific community (Frye test) was established by reason of the specific inclusion of that device in the list of breath- testing instruments approved by the Department of Health (DOH) in regulations promulgated pursuant to Vehicle and Traffic Law § 1194 (4) (c)(see,10 NYCRR 59.4 [b] [19] [i]).
slide61
People v. Hampe, 181 AD2d 238 (3s Dept 1992) app denied 80 NY2d 930.
  • Ask is the device on the "Conforming Products List of Evidential Breath Measurement Devices ... established by the U.S. Department of Transportation/National Highway Traffic Safety Administration" (10 NYCRR 59.4 [b])
but see
But See…
  • The decision of People v. Reed, 2004 NY Slip Op 51662U, 5 Misc3d 1032(A) [published in NYLJ 2/8/05 at 19, col 3]
  • The Bronx SCT held: “It long has been recognized that the purpose of a field test is to provide probable cause for defendant's arrest, rather than to serve as evidence at trial.”
the bronx court relied on
The Bronx Court Relied on:
  • People v. Thomas, 70 NY2d 823, (1987), where the Court of Appeals ruled that it was error to admit evidence of an alcosensor test. The Court reasoned that the sole purpose of this evidence was to establish that the police had cause to administer a breathalyser test, an issue not relevant to whether defendant committed the crime of driving while intoxicated.
the bronx sct
The Bronx SCT…
  • Went on with a very thorough analysis as to why the PBT should not be admitted.
  • Read the case
credibility
Credibility
  • In People v. Creer (31 Misc3d 1, 1st App. Term 2010), Justices of the Appellate Term, First Department, reached different conclusions regarding the credibility of a police officer in a DWI suppression case.
  • Rare insights into credibility determinations in the suppression context.  The majority focuses on what was not in dispute by the officer's testimony.  
the majority
The Majority

The majority reversed the motion court's decision to grant the Defendant's motion to suppress.  The appellate court found probable cause based on the Defendant's "class signs of intoxication," including bloodshot, watery eyes; alcohol on his breath; and unsteadiness.  The court noted:

while the suppression court found that the officer's testimony was "at times" not credible, the court made no specific finding that the officer's testimony regarding his observations of defendant (or defendant's pre-arrest admission) was not credible. 

dissent
Dissent

Justice Schoenfeld, in dissent, analyzed the officer's testimony in depth to show inconsistencies.  "The self-contradictory and confusing testimony of the arresting officer entitled the trial judge to find that there was no probable cause for [the] arrest."  The dissent also makes a reference to the officer's possible testifying—using the "'magic' words to establish probable cause."  

what about deference to trial judge who saw the witness
What about Deference to Trial Judge who saw the witness?
  • The trial judge assessed the credibility of Officer Ulich firsthand.
  • The court found that the myriad inconsistencies in his testimony undermined his credibility with respect to his description of defendant's condition that morning and that there were therefore no facts upon which to base a finding of probable cause.
  • The Officer did not use roadside coordination tests or a portable breathalyzer
  • The Officer was not trained to identify intoxicated individuals
right to confrontation
Right To Confrontation
  • A defendant’s confrontation right is violated when documentary evidence of a license suspension is admitted without an opportunity to cross-examine the affiant.  
people v abelo
People v. Abelo
  • In People v. Abelo (79 AD3d 668, 1st Dept. 12/28/2010), Defendant was convicted at a bench trial of Aggravated Unlicensed Operation of a Motor Vehicle 2° .
  • Conviction requires that the People prove that the Defendant had knowledge or reason to know that he was driving with a suspended license. 
people introduced
People Introduced:
  • To satisfy this element, the People introduced suspension notices through the direct examination of a DMV employee.  The employee testified to having worked for the DMV since 2002 and stated that in 1992 and 1993 the DMV mailed the Defendant suspension notices.  On cross-examination, the employee admitted that she could not testify to DMV mailing procedures during 1992 or 1993.  The trial court refused to admit notices from 1993, but admitted a notice from 1992.
defense argues
Defense Argues
  • On appeal, the Defendant argued that the People were required to produce a witness who was familiar with DMV mailing procedures of the respective periods for cross-examination. 
  • Result?
first department
First Department
  • Three First Department justices agreed with the Defendant.  The court reversed the conviction and ordered a retrial.  The court reasoned that a witness without knowledge of the relevant procedures could not lay the appropriate foundation, nor did the witness satisfy the obligation established by the Confrontation Clause.
not harmless
Not Harmless
  • The court found this error was not harmless, because the evidence also showed that, despite having a suspended license in the early 1990s, the DMV issued him new licenses on several occasions afterwards when he returned to New York after brief stays in other states.  This indicated that there was less than overwhelming evidence that the defendant knew that his license was suspended, the key issue in the case.
dissent77
Dissent
  • Justice Nardelli joined Justice DeGrasse in dissent.  The dissent disagreed with the majority’s interpretation of the witness' preparation.  They believed that the witness had familiarized herself with the 1992 DMV mailing procedures, but was not familiar with the 1993 DMV mailing procedures.  Thus the dissent would have affirmed the conviction on the ground that the 1992 notice was properly admitted.  The dissent considered the production of the DMV employee as satisfying Defendant’s confrontation right.  (MM/LC)
new case may 3 2011
New Case (May 3, 2011)
  • NYCA held that a driver whose license has been revoked, but who has received a conditional license and failed to comply with its conditions, may be prosecuted only for the traffic infraction of driving for a use not authorized by his license, not for the crime of driving while his license is revoked (People v. Peter Rivera, 2011 WL 1639434, 2011 NY Slip Op 03648