DA suing judge over DWI ruling
10/25/05

Monroe County District Attorney Michael Green is taking the
extraordinary step of suing an Irondequoit town judge. The issue is
whether the judge’s ruling in a DWI case has the potential of letting
drunken drivers off the hook.

It happens every night. Police pull over a motorist suspected of drunk
driving. Along with the officer’s own observations, and field sobriety
tests, police use a breathalyzer, a chemical breath test machine, to
determine a person’s blood alcohol level. But how accurate are they and
how often are the machines recalibrated?

Irondequoit town justice John DeMarco has ruled that documents put
into evidence stating the machines are accurate are not enough. He says
the prosecution needs to have a live witness to say that in court.

One of the cases involved a client of defense attorney Gary
Muldoon.

“If you have a document that’s offered into
evidence without a live person, the defense is stymied in questioning
whether that information is valid.â€

Judge demarco apparently made his decision based upon a 2004 U.S.
Supreme Court ruling that redefined a defendant’s constitutional right to
confront his accusers.

The documents in this case are clearly made only for the purpose of
litigation and that makes them suspect. The only purpose of the breath
test documents is to convict a defendant,†said Muldoon.

But district attorney Michael Green says the Supreme Court ruling does
not apply to business documents like the papers certifying the breath
test machine is calibrated.

“In that ruling, Judge Scalia specifically said
that we’re not talking about business records. We understand that
business records come into evidence. We’re talking about a situation
where an eyewitness to a crime gives a deposition and the prosecution
just wants to put in the deposition instead of calling the
eyewitness.â€

District attorney green says to bring experts here 1,800 times a year
for DWI prosecution cases would be an unreasonable burden. And it would
cost taxpayers millions of dollars.

The district attorney cannot directly appeal DeMarco’s decision so he
is asking a state Supreme Court judge to stop further rulings.

“The Court of Appeals has specifically recognized
the rights of prosecutors to challenge certain court rulings in this
fashion.â€

And Green says he has an obligation to due everything in his power to
protect the citizens of this community. “And for any
defense lawyer to suggest that I should just roll over and sit by and do
nothing when these cases are thrown out I think is
absurd.â€

Green says local law enforcement checks the accuracy of the machines
on a weekly basis, and after every arrest.

Irondequoit town justice John Demarco says the judicial code of ethics
prevents him from speaking publicly.

The defendants in the several Irondequoit cases were convicted of a
lesser charge of driving while ability impaired

Source: WHEC News

Nassau DA Announces Harsher Punishments for
DWI’s

Nassau County District Attorney Kathleen Rice held a press conference
yesterday to discuss the first step in her strategy to combat drunk
diving in Nassau County and in New York State.

Flanking Rice at the conference were Nassau County Police Commissioner
James Lawrence, State Senator Charles Fuschillo, Major Walter Heesch of
the New York State Police, members of Mothers Against Drunk Driving and
members of the Nassau County Department of Probation and the
Transportation Safety Board.

DA Rice is implementing sweeping changes in terms of prosecuting drunk
drivers, and has declared her commitment to working with legislative
leaders at the county, state and federal levels stiffening penalties for
offenders and offering more treatment alternatives for offenders
suffering from substance abuse problems.

“I stand before you today the proud member of a
coalition devoted to saving lives in Nassau County,†DA Rice
said. “Behind me are leaders in the law enforcement
community, in Albany, in our county government, and in our communities. I
cannot take on the reckless decision by those 4,100 drivers alone
– that’s why I am honored to be
part of this team and look forward to taking this first step together.
Today is Day 1 in our assault on drunk driving in Nassau County. It will
be a long and hard process, certain to create opposition from the other
side of the court room, but this step, and the steps that will follow,
must be taken before more innocent lives are lost.â€

Senator Fuschillo, the author of New York’s .08
law, expressed appreciation for Rice’s support of his
most recent bill – an attempt to require two-time
offenders to serve at least five days in jail.

“I thank District Attorney Rice for supporting this
legislation, and look forward to continuing our partnership to end the
continuing string of senseless tragedies caused by drunk
driving,†the Senator said.

The District Attorney was also joined by Nassau County Police
Commissioner James Lawrence.

“I look forward to working with the DA on these
cases from the moment of criminality to the end of prosecution. A
partnership between her office and mine is essential when combating crime
and I embrace wholeheartedly her efforts to improve the investigations of
these crimes,†said Commissioner Lawrence.

Heading prosecutions of vehicular crime in the District
Attorney’s Office is Assistant District Attorney
Maureen McCormick, whom the office calls a national expert in vehicular
crime and alcohol-related offenses. ADA McCormick will train law
enforcement in evidence collection and preservation as the
DA’s office looks to strengthen its cases in
preparation for trial. She will also launch a speaking tour of high
schools in Nassau County about the dangers of drinking and driving and
the legal costs and ramifications of it.

“My approach is multi-prong. I am addressing
deterrence with more severe punishments, the ability to receive treatment
for many defendants, the need for real license sanctions in New York
State, and the education of kids that have yet to become defendants or
victims of this epidemic,†said District Attorney Rice.

“Drunk driving needs to be accountable for the
destruction of life it causes. If you drive from Western Nassau County to
Eastern Suffolk County – with DA Rice and DA Spota,
you are not going to get away with murder,†said Denna Cohen,
President of the Long Island Chapter of Mothers Against Drunk Driving
(MADD).

Changes in DWI Policy

The strengthening of cases by procedural and evidentiary upgrades with
the police agencies (i.e. improved cameras in Central Testing Section and
State Police barracks, targeted interrogation and detailed note-taking,
cooperative training with the Nassau County District
Attorney’s Office, universal Portable Breath Tests,
support for Drug Recognition Expert program).

Consistency in approach through a cooperative effort with the
sheriff’s office, probation department and the
judiciary. The DA’s team would like to advocate for
DWI courts, which would allow the expedition of cases, consistency of
plea offers and the ability to follow-up on the conditions of sentence
– especially treatment.

Substantial education for drivers with high BACs. We will advocate for
a driver with a .16+ or a felony DWI to be sentenced to the Victim Impact
Panel. We will also advocate for drivers with low BACs, who are thus
ineligible for the DMV’s Drinking Driver Program, to
receive a 6-hour course covering the toxicology of alcohol and drugs. The
DA’s office wants for aggressive drivers to be
sentenced to a Driver Improvement Course but not to receive the insurance
benefit associated with the DMV-approved Defensive Driving Course.

The DA will be pushing for legislation that will: make an out-of-state
DWI conviction a predicate for an in-state felony; allow for any
medically capable personnel to draw blood for evidentiary purposes; the
creation of an aggravated DWI for higher BAC readings; the creation of a
charge between Manslaughter 2° and Murder 2° for
vehicular murders; the amendment of the sentencing laws to allow for
consecutive sentencing for multiple victims; saliva drug testing similar
to PBTs; revision of Vehicle and Traffic Law 214 to alleviate the
Crawford issue; and Black Box access in vehicles that have not created
commercially available software.

The DA’s office released the following list of changes in plea
guidelines:

Effective Immediately

.05//06 Non-alcohol Traffic Violation + 6-hour Toxicology/Driving
Program

.07 Driving While Impaired (No deal) Cond – Discharge + Drinking
Driver Program, 90-day license suspension + fine

.08-.12 Plea to Driving While Impaired – Targeted Comm. Service –
Cond. Discharge, Drinking Driving Program, Fine, 90-day – Suspension of
license – Jail: 15 days for any failure to comply

.13/.14 Plea to Misdemeanor DWI (No deal) – Recommendation – Comm.
Service – Cond. Discharge + Drinking Driving Program, Fine, 6-month
license – revocation – Jail: 30 days for any failure to comply

.15/.16 Plea to Misdemeanor DWI (No deal) – Recommendation: Probation,
Fine, Ignition – Interlock, Drinking Driver Program, 6-month license
revocation.

.17-.20 Plea to Misdemeanor DWI (No deal) – Recommendation: 10 days
STOP-DWI Jail, Drinking Driving Program, Comm. Service, Victim Impact
Panel, Ignition Interlock, 6-month license revocation

.21+ Plea to Misdemeanor DWI (No deal) – Recommendation: STOP-DWI Jail
or Jail – Split (RAPP Probation), mandatory treatment (devised by
STOP-DWI and RAPP), Fine, Comm. Service, Victim Impact Panel, ignition
interlock 6-month, license revocation (must have NO ability to obtain a
license for RAPP probation)

Refusal: Treated as .13-.16 with Victim Impact Panel Second Alcohol
Incident: Misdemeanor, treat as .21+ Second Incident over .12 or Third
Incident: Felony Now considering all priors, regardless of time lapse
(previously it was a ten-year limit)

Felony: All pleas require the forfeiture of an eligible vehicle.
Sentences should include “no driving as a condition of
probation until treatment is completed and probation clears the defendant
for re-application for a licenseâ€. All pleas with a probation
component MUST include an ignition interlock device, RAPP Probation and
attendance at Victim Impact Panel.

Source:

Drunk Driving on Rise
By Nick Reisman, Gannett News Service

ALBANY — With DWI incidents in New York slightly increasing,
anti-drunk driving activists called on the state Thursday to provide not
only tougher enforcement but also better treatment for alcohol abuse. In
2003, 470 highway deaths involved drivers with a blood-alcohol level over
0.08, the legal threshold for a driving-while-intoxicated charge. In
2004, that number jumped to 494, according to the National Highway
Traffic Safety Administration. In a given, a little more than one-third
of deaths from car accidents in the state are alcohol-related, according
to the agency.

Advocates said they were surprised that drunk driving is on the rise.
They blamed advertising of hard liquor in magazines and television aimed
at teenagers.

“We really were riding the wave of
‘we must be doing something right,‒ said
Donna Kopec, the state’s executive director of Mothers Against Drunk
Driving. “It’s become painfully clear that the
country’s efforts have taken a step back.â€

Some activists said the numbers mean that government and society needs
to provide more in the way of substance-abuse treatment.

“It’s cheaper and more effective to teach people
how to get and stay clean and sober than to simply incarcerate
them,†said Michael Eidens, a Schenectady County Legislator
who also is running against Assembly Minority Leader James Tedisco,
R-Schnectady, this fall.

“Treatment for the drug and alcohol abuser is the
right thing,†Eidens said. “It’s right for
the abuser, and right for our communities.â€

In New York, fines for first time DWI offenses can range from $300 to
$1,000 and temporary suspension of a driver’s license.

But other activists, who spoke at the same news conference as Eidens,
said they are worried that the rise in alcohol-related deaths on the road
are the result of lax enforcement and called for stricter penalties.

“Alcohol kills more youth than all illicit drugs
combined,†said Doris Aiken of Remove Intoxicated Drivers,
adding that colleges and high schools should improve their efforts in
educating students on the dangers of binge drinking.

Aiken urged on the state Legislature to increase penalties for drivers
with a blood alcohol content of 0.18 or greater. It would carry a maximum
fine of $2,500 and up to a year in prison for a first time offense.

The bill, which is sponsored by Sen. Charles Fuschillo, R-Nassau
County, and Assemblyman Paul Tokasz, D-Cheektowaga, Erie County, would
also require cars to be equipped with a device that wouldn’t allow a car
to start if the driver is intoxicated.

“The simple reason for this legislation is that
every single day we read in the newspaper and see on TV another DWI
accident,†Fuschillo said. “It’s on the
state to deter people who choose to drink and drive.â€

The proposal would also provide treatment programs which Fuschillo
said was “absolutely necessary†to curtail
offenses.

Source: http://www.pressconnects.com/

Typo found in N.Y. drunk driving law

Nov 5, 2006

Drinking a shot of beer in New York could get you arrested for drunken
driving, thanks to a typo in a New York law passed this year.

Lawmakers approved a bill that sets the standard for driving while
intoxicated at 0.18 grams of alcohol in a person’s blood. But a person’s
body can produce that much alcohol naturally, according to Rochester DWI
lawyer Ed Fiandach.

Instead of using grams, the law should have used blood alcohol content
as a measure.

Source: msnbc.msn.com

WHY ARE PENALTIES FOR DRINKING AND DRIVING SO STRICT?
Drinking and driving is a hazardous combination.

CONSIDER THESE FACTS: One third of the fatalities in
New York State involve impaired or intoxicated drivers and
pedestrians.

With increased Blood Alcohol Content (BAC), crash risk increases
sharply. A driver with a BAC of 0.08 is four times as likely to cause a
crash as a driver who has not been drinking, while a driver with a BAC of
0.16 is 25 times as likely to do so. Young drinking drivers are at the
highest risk of all. Drivers 20 years old or younger are almost three
times as likely to be involved in alcohol related fatal crashes than
other drivers.

HOW MUCH CAN I DRINK BEFORE IT AFFECTS MY DRIVING
ABILITY? Any amount of drinking will begin to affect your
judgment and coordination,, and reduce your ability to judge distances,
speeds and angles. The degree of impairment depends on four basic
factors: The amount you drink.

Whether you’ve eaten before or while drinking (food slows absorption).
Your body weight.

The length of time spent drinking.

No one should consume alcohol and drive. Everyone’s safe driving
ability deteriorates after drinking. Some people, especially young
drivers, lose their driving skills even more quickly. This is why New
York State law makes it illegal for any driver or passenger to possess an
alcoholic beverage with intent to consume (commonly called the “open
container” law).

It is also illegal to purchase an alcoholic beverage if you are under
21 years old.

WHAT IS THE QUICKEST WAY TO SOBER UP? The only way to
reduce your BAC after drinking, is to wait for your body to metabolize
(eliminate) the alcohol ­ and that takes several hours. Your
body metabolizes about one drink each hour. Coffee will not sober you up.
Neither will a walk or a cold shower. They may make you feel more awake,
but you will be just as impaired, and it will be just as dangerous for
you to drive.

WHAT SHOULD I DO IF I DRINK TOO MUCH? Find someone
who has not been drinking to drive your car or give you a ride home, or
call for a taxi.

HOW CAN I AVOID RIDING WITH A DRIVER WHO’S BEEN
DRINKING? You have a right and a responsibility to say “No!”
Think of other ways of getting home for BOTH of you. Don’t feel
embarrassed or afraid to call your home for help. Or call a friend, or a
taxi. Your life may be at stake. Your chances of being involved in a
fatal collision are many times greater if you ride with a driver who has
been drinking.

WHAT ARE THE CHANCES OF BEING CAUGHT IF I DRIVE AFTER DRINKING
ALCOHOL? Greater than ever before. Drinking driving enforcement
and prosecution are more effective as a result of New York State’s
STOP-DWI law. The law returns drinking driving fines to counties that use
the money to operate programs for drinking driving enforcement,
prosecution, adjudication, and education. Every county in New York State
has a STOP-DWI program. This results in more police with better equipment
on the roads looking for drinking or impaired drivers, more district
attorneys prosecuting them, and more judges hearing drinking driving
cases.

WHAT WILL HAPPEN TO ME IF I AM STOPPED BY THE POLICE?
If you are stopped by a police officer who believes you are under the
influence of alcohol or drugs, you may be required to take a “field
sobriety test” which may include a breath-screening test for the presence
of alcohol. If you are arrested, you will be asked to take a “chemical
test” for BAC. You may also be fingerprinted. Driving While Intoxicated
(DWI) is a crime. If you are convicted, you will face a substantial fine,
a mandatory surcharge, license revocation, higher insurance premiums, and
a possible jail sentence.

WHAT IS BLOOD ALCOHOL CONTENT (BAC)? BAC (Blood
Alcohol Content) is a measure of the concentration of alcohol in a
person’s blood. It is the best predictor of the likelihood of crash
involvement.

ARE LICENSE PENALTIES THE SAME FOR ALL AGE GROUPS?
No. If you are under 21 your driver license will be revoked for one year
if you are convicted of DWI or DWAI that occurred in New York State, or
in any other state or a province of Canada. If you are found to have
refused to take a chemical test in New York State, even if you are not
convicted of DWI or DWAI, your license will be revoked for one year.

If you commit a second such offense while you are under 21, your
license will be revoked for at least one year or until you are 21,
whichever is longer.

If you enroll in the Drinking Driver Program (DDP) and receive a
conditional license, your license will remain in conditional status for
the original full period of revocation.

Your driver license or privilege of applying for a license will also
be suspended if you are found gulity of using a New York State Driver
License or Non-Driver Identification Card as proof of age to illegally
purchase alcoholic beverages.

NOTE: Motorboat and snowmobile operators under 21
years old who drink alcohol are subject to similar penalties and
sanctions against their motorboat or snowmobile operating privileges.

IS IT POSSIBLE TO “PLEA BARGAIN” TO AVOID A CONVICTION FOR
DRINKING AND DRIVING? No, the law prohibits a plea to a
non-alcohol or drug-related violation.

WHAT WILL HAPPEN IF I REFUSE TO TAKE THE CHEMICAL
TEST? If you refuse a chemical test for BAC (Blood Alcohol
Content), your license will be suspended at arraignment in court, and
revoked for at least six months (second offense, one year) at a
Department of Motor Vehicles hearing. You will also be subject to a civil
penalty of $300 (second offense, $750). A driver under 21 years old who
refuses to take a chemical test under the Zero Tolerance Law is subject
to a 1-year license revocation and a $300 civil penalty. The penalties
and fines for refusing to submit to a chemical test are separate from,
and in addition to, the penalties and fines for alcohol or drug-related
convictions.

WHAT ABOUT COMMERCIAL DRIVERS? Compared to other
drivers, every driver holding, a Commercial Driver License (Class A, B,
or C) is held to stricter Blood Alcohol Content (BAC) standards, and
faces tougher penalties, while operating a vehicle that requires a CDL
license. A single conviction for DWI, DWAI, or having a .04 percent or
higher BAC requires a minimum 1-year revocation of the driver’s license
(3-years, if driving a vehicle that requires hazardous materials
placards). A second conviction within the driver’s lifetime results in
permanent revocation, with a possible waiver after 10 years. A third
conviction results in a permanent revocation without any possibility of
ever getting it back. Drivers who hold a commercial license should review
the Commercial Driver’s Manual (CDL-10), available at motor vehicle
offices, for additional information about penalties that apply to
them.

WHAT IS THE “ZERO TOLERANCE” LAW? This law makes it
illegal for a driver under age 21 to have consumed any alcohol. A police
officer may temporarily detain you to request or administer a chemical
test to determine your Blood Alcohol Content (BAC). If your BAC is .02 to
.07 percent, you will be notified to appear at a DMV hearing. If the
judge’s finding supports the charge, the penalty is a 6-month license
suspension, a $125 civil penalty, and a $100 suspension termination fee.
Each additional offense will result in your license being revoked for at
least one year or until age 21, whichever is longer, plus a $125 civil
penalty, and a $100 license re-application fee.

NOTE: If your BAC is .05 percent or greater, the
police may charge you with driving while ability impaired (DWAI) or
driving while intoxicated (DWI), and may prosecute your arrest in
criminal court.

WHAT IS THE “IGNITION INTERLOCK” PROGRAM? Under some
circumstances, a court can order a driver to purchase and install an
ignition interlock device as a condition of probation that begins at the
end of an alcohol or drug-related license revocation. This device
connects to a motor vehicle ignition system and measures the alcohol
content of the operator’s breath. It prevents the vehicle from being
started until the motorist provides an appropriate sample breath. In some
counties, during the remaining period of probation, the motorist may be
eligible to hold a post-revocation conditional license. This conditional
license will be revoked if the motorist fails to comply with the terms of
probation or for conviction of any traffic offense other than illegal
parking, stopping or standing.

Go to: You and
the Drinking Driving Laws

If you are convicted of an alcohol or drug related driving violation,
your driver license or privilege to drive in New York State will be
revoked or suspended. However, you may be eligible for a conditional
license or a conditional driving privilege if you participate in New York
State’s Drinking Driver Program (DDP). If you qualify for a conditional
license or conditional driving privilege, you will be allowed to legally
drive within certain limitations.

To receive a conditional license or conditional driving privilege, you
must participate in the DDP.

Your "Order of Suspension or Revocation" (MV110.1L) from the
Department of Motor Vehicles (DMV) will indicate a state or county motor
vehicle office where you may enroll in the Drinking Driver Program. Bring
your driver license or proof of identity with signature (see form
"MV-44.1", available at motor vehicle offices), and payment of the
appropriate fees (see "Program Fees"). If you are placed on probation
because of this conviction, you also must bring written permission from
the sentencing court, or your probation officer, that allows you to apply
for a license.

If you are licensed in another state or a province of Canada and you
want to restore your New York State driving privilege, see section
"Out-Of-State Issues – DDP Entry."

Before you decide not to participate in the Drinking Driver Program,
please read "If You Do Not Participate."

ABOUT THE PROGRAM

The Drinking Driver Program is part of New York State’s effort to
reduce the personal and property losses caused by drivers under the
influence of alcohol and/or drugs.

The DDP helps the participants examine the arrest experience and the
reason for their arrest. It also helps them learn to make appropriate
driving decisions for the future. During the DDP introductory session,
participants are asked to consider the reasons and goals of the program,
and its requirements for completion. Under the guidance of the director
and staff, the participants discuss the social, medical, legal, and
driver safety problems caused by alcohol and other drug abuse. The
program includes classroom education, screening, and evaluation and
treatment if warranted.

CLASSROOM PHASE

As a DDP participant, you must attend all seven weekly classroom
sessions. Each session takes 2 to 3 hours, for 16 hours total. When you
satisfactorily complete the classroom sessions, your involvement in the
DDP will end, UNLESS the program refers you for formal evaluation, and
any resulting treatment (see "Completion").

SCREENING AND REFERRAL

Some DDP participants are referred from the classroom phase for formal
substance abuse evaluation. Referral can result from: – the results of a
written self-inventory. – two or more alcohol or drug-related driving
convictions within 10 years. – an arrest for an alcohol or drug-related
driving violation while enrolled in the DDP. – attending class under the
influence of alcohol or drugs. – a request by the student for help with a
substance abuse problem, or an admission that the student is currently in
treatment. – If you are referred for evaluation, you may choose a
provider from a list supplied by the DDP. If you are not satisfied with
the results of the evaluation, you may contact the DDP director and
request a second evaluation. However, you must accept the findings of the
second evaluation.

After evaluation, you may be required to complete a formal substance
abuse treatment program. If you fail to complete required evaluation or
treatment, you will be dropped from the DDP and your conditional license
will be revoked.

COMPLETION

You will receive a "Notice of Completion" (MV-2026) when you have
completed all the requirements of the Drinking Driver Program. A copy of
your completion notice will be sent to the DMV. Then, depending on your
license status and driving record, your license will be restored or you
will be eligible to apply for a new license. You may not be allowed to
apply right away if:

– your conditional license is under revocation (see "Conditional
License Revocation"). – you were under 21 when the alcohol or
drug-related driving violation occurred (see "Re-licensing After DDP"). –
you refused an alcohol or drug test on the date of the violation (see
"Re-licensing After DDP"). – you committed the alcohol or drug-related
violation while operating a commercial motor vehicle.

DROPS, RE-SENTENCING, RE-ENTRY

You will be dropped from the DDP and lose your conditional license
(see "Conditional License Revocation") if you:

– do not attend class, any required evaluation, or treatment; or, – do
not otherwise satisfactorily participate in the program; or do not pay
the program fees. – If you are dropped from the DDP, you may not re-enter
without a written letter of consent from the DDP director. Bring the
letter to any state or county motor vehicle office for additional
information about re-entering. A re-entry fee of $50 is required, payable
to the DDP. There are restrictions on the number of times that a
participant may re-enter the program and keep a conditional license.

At the time of sentencing, the court may have issued you a conditional
discharge (CD) that requires DDP completion. DMV will notify the court if
you do not enroll in the program, or are dropped from it. The court then
may call you in for re-sentencing.

PROGRAM FEES

When you enroll in the Drinking Driver Program, you must pay the
Department of Motor Vehicles a nonrefundable fee of $75. Other fees also
may be required in certain cases. Checks or money orders must be made
payable to the "Commissioner of Motor Vehicles. "

After enrollment, you also must pay a fee directly to the agency that
will conduct your DDP classes. The maxiumum DDP enrollment fee is $225,
payable to the program you attend. Motor vehicle staff will tell you the
exact fee and who to pay. Payment is expected when you attend the first
class. There will be additional fees if you transfer to another DDP or
apply to re-enter a program you have been dropped from.

During the DDP course, you may be referred to a DMV recognized health
care provider for formal evaluation and resulting treatment, if
necessary. If formal evaluation or treatment is needed, you will have to
pay additional fees to the agency that provides those services (see
"About the Program").

THE CONDITIONAL LICENSE NOTE: The limitations for using a conditional
license, and the reasons for its revocation, also apply to conditional
driving privileges issued to participants licensed in other states.

WHERE AND WHEN YOU MAY DRIVE

A conditional license generally is not valid for driving a taxicab or
any motor vehicle that requires the driver to have a Commercial Driver
License (CDL). In certain situations, a conditional license may be issued
to the holder of a CDL or a Class E license. For more information,
contact the DMV Driver Improvement Adjudication Unit (DIAU; see address
in Relicensing For Non-Participants").

If you receive a conditional license, it is valid to drive only:

• to and from work, and during work if driving is part of your
  job
• to and from a class at an accredited school or college
• to transport your child to and from a child care facility or school
  when necessary to maintain your employment, or your enrollment in an
  accredited school or college
• to and from DDP classes and any required evaluation or
  treatment
• to and from a state or county motor vehicle office for business
  related to your conditional license
• to and from court-ordered probation activities
• to and from medical examinations or treatment for you or a member
  of your family, as certified in writing by a physician
• during the three-hour weekly period listed on your conditional
  license attachment

If your job or school changes location, you must immediately notify
the DMV. To do this, complete a "Conditional License-Privilege
Attachment" (MV-2020, available at most motor vehicle offices), and
submit it to a state or county motor vehicle office.

CONDITIONAL LICENSE REVOCATION

Your conditional license will be revoked if you are convicted of
violating any condition listed above, or of any moving violation. After
the conditional license is revoked, you may continue to attend the
Drinking Driver Program, but you may not drive under any circumstances.
If you are over 21 years old and complete the program without additional
convictions, your full license will be restored at the end of the program
(see "Re-licensing After DDP"). If you are under 21 and your conditional
license is revoked, you must serve a one-year revocation even if you
complete the DDP.

Your conditional license also will be revoked if you are convicted or
found guilty of any additional alcohol or drug-related violation, or any
other violation or incident that usually results in license revocation.
If your conditional license is revoked for any of these reasons, you may
continue to participate in the DDP without driving, but you will not be
re-licensed immediately after you complete the program. The DMV will
consider your re-licensing only after you have completed the DDP and have
served any required revocation period. You must turn in the revoked
conditional license to a state or county motor vehicle office to receive
credit toward the revocation period.

If you are dropped from the Drinking Driver Program, your conditional
license will be revoked. If this occurs, your original license suspension
or revocation will be reinstated for its full length. You must turn in
your conditional license immediately upon receiving a revocation order.
If you wait, your return to full license status may be delayed.

RE-LICENSING AFTER DDP

If your original license had been suspended, you must:

complete the DDP; go to any state or county motor vehicle office to
have your license restored; pay a $25 suspension termination fee; or, if
your license had been suspended following a violation of the "Zero
Tolerance Law," you must pay a $100 suspension termination fee and a $125
civil penalty; and, pay any required license fees, such as for license
renewal. If your original license had been revoked, you must:

complete the DDP; bring your DDP "Notice of Completion" (MV-2026) and
conditional license to the state or county motor vehicle office that
issued the license; meet all DMV requirements and criteria for
re-licensing; and, pay any required license fees such as for license
renewal, or for any required skills tests for Commercial Driver Licenses.
Please note: Re-licensing after revocation is not automatic. DMV must
review your application.

STATE OF LICENSE STATE OF CONVICTION DESIRED DDP LOCATION WHAT TO DO
NY NY Out-of-state Contact the DIAU for information about equivalent
out-of-state programs. The out-of state program need not be identical in
length or number of sessions as the DDP. After you enroll in an approved
program, bring or mail proof to a NY state or county motor vehicle
office. If you are eligible that office will issue you a conditional
license. If you qualify your license must remain in conditional status
for at least 60 days. NY Out-of-state NY If you have not received an
order of suspension or revocation, it is possible that the DMV has not
received proof of your out-of-state conviction. Contact the DIAU for
information about entering your out-of-state conviction onto the DMV’s
record. When it has been entered, you will be mailed a suspension or
revocation order, and information about the DDP and conditional license
options. Out-of-state NY NY After your alcohol/drug conviction is on the
DMV record and eligibility has been determined, go to a NY state or
county motor vehicle office and enroll in the DDP. At enrollment, you
must present a driving record (abstract) from your home state before the
DMV can issue a conditional driving privilege. Out-of-state Out-of-state
NY This is called a "courtesy" enrollment in the DDP, which may satisfy
another state’s requirements. Check with the other state to verify
whether they will accept the New York State DDP. Bring proof of your
out-of-state conviction to a NY state or county motor vehicle office. No
driving abstract is needed, as a New York license privilege will not be
issued.

The DMV cannot consider your application for re-licensing until the
end of the revocation period if you originally had refused a request for
an alcohol or drug test, had committed the alcohol or drug-related
violation while driving a commercial motor vehicle, or were under 21 at
the time of your arrest. However, if you complete the DDP and have a
conditional license, you may continue driving in conditional status
during the remainder of the revocation period.

OUT-OF-STATE ISSUES – DDP ENTRY

Most DDP participants are New York State licensed drivers convicted of
alcohol or drug-related driving offenses that occurred in New York State.
To participate in the DDP, those drivers should follow the instructions
previously described in this publication.

The situation of other drivers may fit the "out- of-state"
circumstances summarized above. For each description, proof of alcohol or
drug-related conviction is required. For additional information, contact
the DMV Driver Improvement Adjudication Unit (DIAU, see address in
"Re-Licensing for Non-Participants").

IF YOU DO NOT PARTICIPATE

If you are eligible to participate in the Drinking Driver Program, or
choose not to, you will not be eligible again for the program or a
conditional license for the next five years.

Note the effective date on your "Order of Suspension or Revocation"
(MV-110.1L). Unless you already have turned in your license to the court,
you must turn it in to a DMV office or a county motor vehicle bureau by
this date.

If you do not participate in the DDP, your license suspension or
revocation officially began at your hearing or sentencing in court,
unless the court gives you a "Continuation of Driving Privileges"
(MV-1192). Your credit for serving the suspension or revocation begins on
the effective date of the order or the day after you turned in your
license, whichever was later, provided you give the court your most
recent license. If you receive a "Continuation," your suspension or
revocation will begin 20 days after sentencing, and you will begin to
receive credit on the next day. You must then turn in your license at a
motor vehicle office, unless it has already been taken by the court. If
your license is missing, contact a state or county motor vehicle office
for guidance about what to do.

It is a criminal offense to drive a motor vehicle while your license
is suspended or revoked. If you are convicted of driving under suspension
or revocation, you will be fined at least $500, and you will be sentenced
to jail or probation. In addition, the police will impound the vehicle
you were driving when arrested.

RE-LICENSING FOR NON-PARTICIPANTS

New York State Licensed Drivers: If your driver license becomes
suspended, it will be restored after the end of the suspension period and
payment of the suspension termination fee described in "Re-licensing for
DDP Participants." You may pay the fee in person at any state or county
motor vehicle office. You may also mail the fee payment to any of these
motor vehicle offices, or to the DMV Driver Improvement Adjudication Unit
(DIAU) at the address below. Your valid photo-license will be mailed to
you after the fee is paid.

If your driver license has been revoked, you must apply directly to
the DIAU for a new license, and pay a non-refundable re-application fee
of $50 and any other license fees as described in "Re-licensing for DDP
Participants." Your application cannot be approved before the minimum
revocation period is served, but the DMV will accept it for review up to
45 days before the revocation ends. If you are placed on probation, you
must present written permission (also called, "probation clearance") from
the sentencing court or your probation officer.

If your driving record contains two or more alcohol or drug-related
incidents in 10 years, the DMV requires written evidence, before your
application will be considered, that substance abuse treatment is not
required or has been successfully completed. Contact the DIAU for a list
of evaluation and treatment providers.

If your license becomes revoked for a second "Zero Tolerance Law"
violation (driving after consuming alcohol, under age 21), the
reapplication fee is $100, and you must pay a $125 civil penalty. You
must also pay a civil penalty fee of $300 ($750, second offense) if you
had refused to submit to a chemical test at the time of arrest.

Send your completed "Application For Driver License" (form MV-44,
available at any motor vehicle office), and a check or money order
payable to the "Commissioner of Motor Vehicles," to:

Driver Improvement Adjudication Unit Department of Motor Vehicles 6
Empire State Plaza Albany, NY 12228 Phone: (518) 474-0774

The DMV will review your driving record and determine if you meet all
re-licensing requirements. You will be notified by mail whether your
application is approved or denied. If your application for license is
approved, you must bring it to a state or county motor vehicle office for
processing. You may be required to pass qualifying tests. After your new
license is issued, you must serve a six-month probationary period.

For Drivers Licensed Outside New York State:

After you complete your period of suspension or revocation, you may
request the restoration of your New York State driving privilege
following the completion of your period of suspension or revocation. Send
a letter to the DMV Driver Improvement Adjudication Unit (DIAU)
requesting restoration (address above). Your letter should include your
full name and date of birth. Also enclose a check or money order of $25
for the restoration fee, payable to the "Commissioner of Motor Vehicles."
You may not resume driving in New York State until the DMV notifies you,
in writing, that your driving privilege has been restored.

If you have been arrested for a DWI in New York you will need to hire a New York DWI Lawyer.

New boating while drunk law takes effect Sunday August 4, 2006, 2:51 PM
EDT

ALBANY, N.Y. (AP) – Beginning Sunday, operating a boat while drunk
will get you the same stiff penalties as an arrest for drunken
driving.

Supporters of the bill passed by the Legislature in June and signed
into law in July by Gov. George Pataki note that 28 percent of fatal
boating accidents involved alcohol in 2004, the latest year for which
statistics are available.

“Boating while intoxicated is at least as dangerous as driving while
intoxicated because the sun increases the effects of alcohol,” stated
Denna Cohen, the president of Mothers Against Drunk Driving on Long
Island.

Under the new law, a first conviction for boating while intoxicated
would be a misdemeanor with a sentence of up to a year in jail, instead
of 90 days in years past. The fine would also increase to a maximum of
$1,000 from $500.

A second conviction in 10 years would be a Class E felony, carrying up
to four years in prison and a fine of up to $5,000. A third conviction in
10 years would be a Class D felony with a sentence of up to seven years
in prison and a fine of up to $10,000.

The maximum fine for boating while ability impaired will rise to $500
from $350. A second conviction in five years would carry a fine of up to
$750 and 30 days in jail.

“Boating while intoxicated is not a harmless activity and now it will
be treated in the serious manner it needs to be,” said Sen. John
Flanagan, a Long Island Republican who co-sponsored the bill.

“This law will give marine law enforcement and prosecutors the
necessary tools to maintain an aggressive posture against BWI and BWAI
violators,” said Assemblyman Thomas DiNapoli, a Nassau County Democrat
who also sponsored the measure.

Source: http://www.newsday.com

Traffic Safety Milestones in New Mexico:
A Short History of Traffic Safety Legislation and Public Policy in New
Mexico

Carolyn Johnson, Training and Development Section Institute of Public
Law, University of New Mexico School of Law MSC 11 6060, 1 University of
New Mexico, Albuquerque, NM 87131-0001

1913: First State Legislature passes anti-DWI law: Penalties: Fines
between $25 and $100; jail between 30 and 90 days.

1919: DWI penalties raised to $1000 and one year in jail. The
legislature also made it a crime for a passenger to knowingly and
willfully ride with an intoxicated driver. The passenger was subject to
the same penalties as the driver – $1000 fine and a
year in jail. (Note: this is the year prohibition was passed).

1929: Legislature repeals the statute making it unlawful to ride
with an intoxicated driver.

1967: NHTSA issues Federal Motor Vehicle Safety Standard 208,
requiring auto manufacturers to install lap and shoulder belts in
outboard positions (next to windows) and lap belts in all other
positions. This law became effective in 1968.

1969: Implied Consent Law Passed. Contained the following
presumptions: under .05 it is presumed that person is not intoxicated;
.05 to .09: no presumption is made as to intoxication; .10 and over it
is presumed that the person is intoxicated. These presumptions could be
overcome by competent evidence as to the intoxication or sobriety of
the driver. They did not apply to the criminal portion of the law, but
rather to license revocation.

1971: Implied Consent Act is taken out of the courts and made an
entirely administrative (noncriminal) proceeding.

1983: The per se standard of .10 is added to the criminal portion of
the law (66?8-102C). Under this section of the law, a person can be
convicted of DWI for driving with a blood alcohol concentration of .10
or more. New Mexico enacts child safety restraint law, which applies
only to children under 5, with secondary enforcement.

1984: The per se standard of .10 is added to the Implied Consent
Act, which now defines driving with a BAC over .10 as both a criminal
violation and an administrative (noncriminal) violation. The
administrative per se violation replaces the portion of the law which
provided that at .10 BAC or over, the driver was presumed to be
intoxicated. Under this new law, (66-8?110C) the driver with a .10 or
higher BAC has his license administratively revoked and is charged with
the crime of DWI.

1985: New Mexico’s mandatory child restraint law
amended to include children under 11, with primary enforcement.

1986: New Mexico’s mandatory adult safety belt
law goes into effect (passed in 1985) with primary enforcement.

1987: New Mexico Court of Appeals holds sobriety checkpoints
constitutional in New Mexico (City of Las Cruces v. Betancourt) as long
as certain guidelines are followed.

1988: The cars of second and third time offenders impounded for 30
and 60 days, respectively. Fourth or subsequent offenders will receive
mandatory six-month jail sentences. Mandatory 96 hours in jail for
driving with a license revoked for DWI. Law clarifies that DWI
convictions will be recorded against offenders even if their sentence
is suspended, deferred or taken under advisement.

1989: Legislature passes open container law, modifies mandatory
safety belt law to apply to pickup trucks as well as passenger cars,
and passes new law, the Local Liquor Excise Tax Act, which applies only
to McKinley County. Pursuant to the new law, McKinley County passes
local tax on alcohol of 5%, to fund drug abuse education, prevention
and treatment programs.

1990: Farmington enacts ordinance providing for mandatory three days
in jail for ALL DWI offenders. US Supreme Court approves sobriety
checkpoints, as long as police agencies comply with outlined
procedures.

1992: Albuquerque passes state’s first DWI
vehicle forfeiture ordinance for driving while revoked for DWI. The
penalty is entirely civil and will eventually encompass both driving
while revoked and DWI.

1993: Legislature creates new crimes of felony DWI for a fourth or
subsequent offense and aggravated DWI for .16+, refusal or causing
bodily injury while DWI. BAC per se standard is lowered from .10 to
.08. DWI Local Grant Fund is created for communities to apply for
grants to fight DWI at local level; mandatory alcohol evaluation for
all DWI offenders and mandatory penalties for second or subsequent
offense. Most of the new laws went into effect in 1994.

1997: Legislature requires fingerprinting of all convicted DWI
offenders.

1998: Service to drive-up alcohol windows is outlawed statewide by
state legislature.

1999: Limited licenses for convicted offenders become available to
offenders who install ignition interlocks on their cars (among other
requirements) — vehicles may be driven only to work or school.
Graduated driver’s license legislation passed,
pertaining to youth under age 18.

2001: Law passed requiring all adults to be in a safety belt in all
positions of a vehicle.

2002: Legislature requires ignition interlocks to be installed on
the vehicles of all convicted repeat DWI offenders and aggravated DWI
offenders. New Mexico Supreme Court holds that
Albuquerque’s DWI vehicle forfeiture ordinance does
not constitute double jeopardy.

2003: Ignition Interlock License Act passed, allowing DWI offenders
to obtain a license to drive anywhere at any time, unless they have
been convicted of vehicular homicide or great bodily injury by vehicle
while DWI. Law now allows tribal convictions to be counted as prior
offenses in New Mexico, and allows tribes to submit records to
statewide MVD/DWI database, at tribes’ option.

Dona Ana County’s vehicle forfeiture ordinance
goes into effect.

2004: Legislature raises DWI from a fourth degree felony to a third
degree felony on a sixth or subsequent offense. Makes substance abuse
counseling and treatment mandatory on every subsequent offense and for
all persons incarcerated for DWI. Law changed to include tribal
convictions as priors for purposes of sentence enhancement. Each prior
DWI conviction within the last 10 years now adds four years to a prison
sentence for vehicular homicide, (mandatory). This doubled the previous
enhancement of two years. Law changed to make it a fourth degree felony
for a person to sell, serve, give, buy, or deliver alcohol to a minor,
or assist a minor to buy, procure or be served alcohol. This includes
getting someone else to give alcohol to minors by deceptive
practices.

Las Cruces and Torrance County vehicle forfeiture ordinances go into
effect.

2005: Legislature increases period of license revocation for a
conviction for DWI, as follows: 1 year revocation on a first, 2 years
on a second, 3 years on a third and lifetime for a 4th — subject
to a five-year review in the district court. Law now requires any
convicted offender to obtain an ignition interlock license and have
interlock installed and operating on all cars driven by offender,
according to the same timetable as the license revocation. Law makes
juveniles subject to the interlock indigency fund. Adds mandatory
community service for first and third time offenders. New law requires
standardization of law enforcement arrest records and procedures.
Expands definition of ignition interlock device as one that
“prevents the operation of a motor vehicle by and
intoxicated or impaired person.â€

Updated May, 2005 Institute of Public Law, UNM School of Law Carolyn
Johnson, Training and Development Section 505/277-8790

States turn on to idea of ignition locks
By Haya El Nasser, USA TODAY

More convicted drunken drivers may have to blow into devices that
won’t let them start their cars if they’re intoxicated now that several
states are embracing tougher penalties.

Lobbyist Richard Roth, holds up the ignition interlock device which
keeps a car from starting if the driver has been drinking. By Jeff
Geissler, AP

New Mexico last Friday became the first state to require “ignition
interlock” systems for first-time offenders. The devices, which act as
breath-alcohol analyzers that control a car’s ignition, will be on their
cars for one year. Drivers with four or more DWI convictions are required
to drive with the interlocks for the rest of their lives.

The devices cost the offenders about $1,000 a year.

Until now, they were required only for repeat offenders and for a
maximum of a year.

At the same time, the Senate version of a federal highway spending
bill before Congress threatens to withhold about $600 million in highway
construction and maintenance funds if states don’t subject high-risk
offenders to stiffer sanctions, including ignition interlocks and license
suspensions.

Mothers Against Drunk Driving says 17,000 people are killed and a
half-million injured in alcohol-related crashes every year. Only 18
states have mandatory ignition interlock laws, according to MADD
President Wendy Hamilton.

High-risk drivers include repeat offenders and those convicted of
driving with a blood-alcohol levels of 0.15% or higher. By August, when a
Minnesota law goes into effect, the legal limit in every state will be
0.08%.

Forty-three states and the District of Columbia have the option to
make convicted drunken drivers use interlocks, MADD says. More are making
them mandatory, applying the sentence to all offenders or lengthening the
penalty:

This month, Florida Gov. Jeb Bush signed a bill that allows the state
to require the device without a court order.

Last year, Washington state began requiring interlocks for first-time
offenders with a blood-alcohol level of 0.15% or higher.

New York Assemblyman Felix Ortiz, who spearheaded legislation that
bans hands-on use of cell phones while driving in his state, introduced a
bill that would require interlocks on all new cars. A similar measure
failed in New Mexico last year, but others are being proposed in New
Jersey, Connecticut and Washington state.

Tackling the problem

New Mexico, which ranks sixth in the nation in the rate of
alcohol-related car fatalities, is becoming one of the toughest
enforcers. There are 3,000 interlocks on cars in the state, the highest
per capita of any state.

In 2003, 198 of New Mexico’s 439 traffic fatalities were
alcohol-related, according to the most recent government data. It was the
first time since 1998 that the state’s alcohol-related fatalities fell
below 200.

Fighting drunken driving is one of Gov. Bill Richardson’s signature
issues. He has appointed DWI Czar Rachel O’Connor and several task forces
to tackle the problem of repeat offenders and set up drunken-driving
checkpoints statewide.

Source: USA Today