Ithaca Bath DWI lawyer: Did you know that your BODY TEMP can INCREASE your Breath Test Result?

One of my fav SNL sketches ever.  image courtesy razcardblog

Did you know that your BODY TEMP

can INCREASE your results

on a DWI Breath Test?

As I've discussed in many other posts, there are MANY, MANY factors that can negatively affect or skew a Breath Test result in a DWI case.  The breath test is not reliable for all kinds of reasons... 

Here's another one.  

HYPERTHERMIA:  the condition of having a body temperature greatly above normal. 

37.5 - 38.3 Celsius OR 99.5-100.9 Fahrenheit [or higher]--can begin to affect Breath Testing.

Did you know that for every 1 degree celsius increase in your body temperature, an individual's breath test result will be FALSELY ELEVATED by approximately 8.62% ?!?!?

In other words, if somebody's body temperature is significantly increased, then their results on a DWI breath test will be SIGNIFICANTLY HIGHER --but won't accurately reflect their actual Blood-Alcohol level.  

What scenarios would apply to this? 

-Having a Fever 

-Using Drugs (some amphetamines can raise body temp or other drugs that affect the central nervous system)

-Hard exercise or Hard physical labor

-Being in a Hot Tub

-Being in a Sauna

DO THE POLICE TAKE YOUR BREATH TEMPERATURE BEFORE A TEST IS GIVEN?  

Answer:  No.

So if you just got out of a hot tub at a party, were driving home and then was pulled over, any breath test result would be SIGNIFICANTLY HIGHER than it should be.  

It is important to give your defense attorney EVERY fact in a DWI case--because there are all sorts of things that can affect your case --that you would never consider. 

Bottom Line:

The police are looking to convict you.  They want the test result to be as high as possible.  They will not test your breath temperature.  They will not take multiple breath tests to see if the first one was skewed or indicates that your BAC is on the rise or falling.  

They take one test (or a couple to get the result they want) and that's that. The police are not looking to help you --or exonerate you.  

If you have questions about a DWI case, give us a call:

607-229-5184

Email:  mike.ithacadwi@gmail.com

By Attorney Mike Cyr

www.ithacadwi.com

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Ithaca Waterloo DWI Lawyer: What is Aggravated Unlicensed Operation in the Second degree? AUO 2nd in New York

AUO in the 2nd degree, your second strike... image courtesy glasslewis.com

HOW DO YOU GET AN 

Aggravated Unlicensed Operation

in the SECOND Degree Charge? 

What does it mean?

As a DWI defense attorney in Ithaca and the surrounding Finger Lakes Region of upstate New York, I see all kinds of charges associated with DWIs.  Some very common charges are AGGRAVATED UNLICENSED OPERATION in the 3rd, 2nd, or even, 1st degree. 

What is Aggravated Unlicensed Operation or otherwise known as ("AUO") in New York?

Answer:  It is driving when your license is revoked or suspended in NY.  It's just that simple.

This post is about AUO in the SECOND Degree... but let's give some context about the other AUO degrees. 

-AUO 3rd -- this is for driving on a first time license suspension --it is a B misdemeanor in NY.   Possible sentences include:  $200-$500 in fines, up to 30 days jail, and fees.  If convicted, you will have a permanent criminal record in New York.  That's why any AUO is a serious offense that must be defended.  

*There is no expungement of criminal records in New York!  A criminal conviction is there for LIFE.

How can you be charged with AUO 2nd? 

1.  If you are convicted of a prior AUO in the past 18 months; 

2.  If your current suspension/revocation is based upon a REFUSAL to take a chemical test; 

3.  If your current suspension/revocation is based upon a conviction of a DWAI (alcohol), DWI, DWAI drugs or any other drunk/drugged driving offense (including the under 21 ZERO TOLERANCE ticket VTL 1192a);

4.  If your suspension was before a pending DWI or DWAI drugs case sentenced (suspension pending prosecution);

5.  If you were suspended/revoked on three or more separate dates. 

As you can see, there are MANY ways to charge this crime.

However, the possible sentences change based upon the REASON you are charged with AUO 2nd.  

What's the worst thing about an AUO 2nd degree?

*Mandatory JAIL or Probation sentence!  

If the underlying license suspension was for anything ALCOHOL or DRUG related, (i.e. a conviction for a DWAI alcohol or DWI or DWAI drugs or Refusal), then the Court is required by law to impose EITHER: 

Jail (minimum 7 days! up to max 180 days)  or 

Probation (period up to 2 or 3 years) [probation is worse than jail in New York!]

That's pretty harsh.  If convicted of this crime, the Judge has very little flexibility on what sentence can be imposed.  The state legislature has made it clear.  

*There are also mandatory fines of minimum $500 to $1000.

*The court also MUST include a course of drug/alcohol treatment for anybody convicted of this crime with an underlying alcohol or drug related offense.  

HOW DO WE DEFEND THIS CRIME?

Unlike an AUO 3rd (which is a first offense) for driving on a suspended license, this charge is inherently harder to defend because the charge itself tells the Prosecutor and Judge that you did NOT learn your lesson.  

Due to the harsh sentencing requirements for an AUO 2nd conviction, I generally do everything I can to negotiate some kind of plea that involves pleading guilty to a DIFFERENT crime.  

If you plead guilty to a different A misdemeanor, then the Judge and Prosecutor have less restrictions on what the sentence can be.  No other criminal charge has MANDATORY Jail or Probation sentences.  That's why it makes sense to try to get the Prosecutor to agree to a plea of guilty to a different charge.  They have the power to change it --but the Judge also has to agree.

If there was some lack of knowledge of the underlying license suspension/revocation, that is another way we try to defend.  Unfortunately, in my experience, most Judges and Prosecutors do NOT believe that you "didn't know" about a suspension when a DWI or associated charge is involved (including Refusals and Zero Tolerance suspensions).  

Sometimes the "I didn't know my license was suspended" defense is viable when the AUO 2nd charge is based upon 3 or more suspensions on 3 separate dates.  Otherwise, it is usually not believable. 

BOTTOM LINE:

AUO 2nd is one of the worst charges to get because it truly limits the arguments that can be made on a Defendant's behalf.  If you are charged with this serious crime, you absolutely must retain an attorney.  The stakes are very high and possible JAIL or PROBATION sentences are looming. [Remember Probation means closely monitored supervision for up to 3 years --no drinking, no privacy, drug tests, permission before you move, permission before you get your license back etc]

If you are charged with AUO 2nd or have questions about an AUO charge of any degree, 

Call us:  607-229-5184

Email me:  mike.ithacadwi@gmail.com

By Attorney Mike Cyr

www.ithacadwi.com

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Ithaca Elmira DWI lawyer: Avoiding Bail or JAIL before trial -- Pre-Trial Supervision is an Option in New York

AVOIDING JAIL or HIGH BAIL in New York:

Using Pre-Trial Supervison

by the Probation Dept.

Just a few weeks ago, the Probation Department issued a new handbook on Probation procedures for DWI cases.  It is a very lengthy handbook that covers all manner of situations from the basic to the more involved... 

here is the link:  http://www.criminaljustice.ny.gov/opca/pdfs/probation-practitioner-handbook-mgt-of-dwi-offender.pdf

USING PRE-TRIAL SUPERVISION AS AN ARGUMENT TO AVOID JAIL BEFORE A TRIAL or HIGH BAIL

As a DWI defense attorney, I'm always on the look-out for arguments that can help my clients avoid jail time.  In this instance, the probation handbook actually makes a couple good ones for me.  

They encourage the Court to use "pre-trial supervision by probation dept" to ensure compliance with court orders and to even go so far as to have a defendant install an Ignition Interlock device PRIOR TO SENTENCING.  In some counties, that happens frequently, in Tompkins and surrounding counties (except Chemung) it does not. 

Here is the excerpt below from the Probation handbook:  (i've highlighted the sections we could use in arguments to a Judge)

Section III. Pre-Trial Supervision 

Pre-trial supervision can be an effective means of ensuring that offenders return to court, while reducing unnecessary reliance on jail incarceration. By allowing defendants at low risk of absconding to return to the community while awaiting trial, and with the approval of the court, defendants can be effectively screened and assessed for alcohol dependency, and become engaged in treatment at a critical time when the incentive for changing behavior is its greatest. Pre-trial supervision services can provide a very effective opportunity for the offender to change behavior and allow information to be promptly reported back to the court that can benefit the offender at sentencing. In addition to the benefits of early engagement, pre-trial supervision can provide an excellent source of information which may be utilized at the pre-plea or pre-sentence, and post-conviction supervision stages. 

Pretrial staff commonly interview defendants while they are held or detained in police lock-ups or local jails. Typically, pre-trial staff utilize pre-trial screening assessments, questionnaires, and criteria to determine a defendant’s risk of failing to appear before court. In the case of DWI defendants, the pretrial agency may wish to focus on issues specific to this population. 

Some DWI specific issues for screeners to note may include: 

• Does the person currently have a valid driver’s license?

• Does the person own or have access to a vehicle? 

• Does the person have a history of treatment 

Having a license and access to a vehicle may provide an increased opportunity for flight. However, the release of a defendant also presents specific opportunities for monitoring license and vehicle activity. 

If a defendant is actively in treatment, the supervising officer/agency can coordinate with the defendant’s treatment provider to inform the treatment plan, and seek modification of conditions of supervision from the Court. Chapter 169 of the Laws of 2013, signed by Governor Andrew M. Cuomo on July 26, 2013, amended Vehicle and Traffic Law (VTL) §1193 for defendants who committed their offenses on or after November 1, 2013, recognizing the imposition of Ignition Interlock Devices (IIDs) to be installed prior to sentencing as a preventive measure. 

THE LOGIC IS SOUND. 

For low risk of flight offenders --or even those with some risk of flight--probation supervision is a good alternative to being in jail awaiting trial.  Trials and the criminal court process takes months.  The probation manual itself provides some good reasons why jail would be counterproductive to somebody faicing a DWI or DWAI Drugs charge.  

If they need alcohol or drug treatment, then jail is not the answer anyway.  In terms of making good defense arguments, if somebody is on pre-trial supervision and their driving is being monitored--then that can only help ME (the defense attorney) when making the argument that the DWI was an aberration --not a pattern of behavior.

If you have questions about a DWI or DWAI drugs case, call us: 607-229-5184

Email: mike.ithacadwi@gmail.com

By Mike Cyr

Cyr & Associates 2015

www.ithacadwi.com

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Ithaca DWI attorney: New Hand BIO-SENSOR in development to stop Drunk Driving

Sober Steering Photo, per article below

Bio-Sensor for your HANDS ON WHEEL

in development in Canada to 

detect/prevent Drunk Driving 

As a DWI defense lawyer, I try to keep up with developments in both the law and technology/law enforcement side of things... 

On Sept. 17, 2015, this article appeared about a Canadian company with U.S. ties that is working on a BIO-SENSOR that will supposedly measure your Blood-Alcohol Concentration through your skin.  It will be fit onto steering wheels and will be connected to the Transmission of the car. 

http://www.autoblog.com/2015/09/17/biosensor-tech-detects-drunk-drivers-hands-steering-wheels/

I think that it is interesting that this company is planning on measuring your Blood-Alcohol Concentration through your skin... unfortunately, the company fails to mention how it plans to accomplish that task scientifically.  

As with any measuring system, I worry about the basic premise --they would be measuring your SKIN to determine what's in your BLOOD.  Therefore, I see inherent problems and potential for false positives.   I imagine they will be using some form of infrared light spectroscopy to determine the BAC of a person.  The only sort of technology that will be universally accepted will have to be non-invasive (i.e. not giving you a pin-prick and actually testing your blood).  It will also have to be convenient.

The other new part of the technology is that this does not affect the IGNITION like current systems.  This new technology is designed to control the car's TRANSMISSION.  I think this is a good idea because it allows the car to be running even with a failed test.  This is important in the winter when it's freezing outside and you need the heat inside the car.  

However, most states in the US have laws that make it a crime to be drunk in a car when the keys are in the ignition.  New York does.  So, hypothetically, if this technology was universally installed, the police could still charge people with DWI even if they are just sitting in their disabled car with the engine running in the cold... 

I think this sort of technology will eventually be mandated by the federal government on all vehicles.  I just hope that it proves reliable enough so that those accused of DWI are not unfairly convicted --and those of us that do NOT drink and drive will not be significantly inconvenienced.   Guess we will have to wait and see... 

I'll be monitoring their progress with interest.  

By Attorney Mike Cyr

Call us if you have questions about IGNITION INTERLOCK DEVICES :  

607-229-5184

Email:  mike.ithacadwi@gmail.com

www.ithacadwi.com

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Ithaca Cortland DWI lawyer: What is the NATIONAL DRIVER REGISTRY? Federal Tracking of NY tickets and crimes

Great 80's movie!  image courtesy of wikipedia.org

FEDERAL TRACKING OF YOUR LICENSE:

The National Driver Registry

This is an excerpt from our free ebook, "Everything You Need to Know About a NEW YORK DWI and Your DRIVER'S LICENSE," by Attorneys Mike Cyr and Larry Newman.  

Here is the link. 

Life, like law, has a great many layers. Changing your perspectives, angle, or
viewpoint of the same situation may depress or elate you. Laws, rules, and
statutes come in different varieties and levels. We have Federal laws, State laws,
and local (municipal) laws. In fact, you may be brought up on charges across the
board (all three) in some cases. Sometimes violations are segmented (isolated to
one area), sometimes they may spill over into multiple jurisdictions.

The Feds and Federal Law

The old expression, "are you making a Federal case out of it?" refers to the
complex, harsh, and conservative Federal (government) regulations. Bringing a
claim in Federal Court or being brought to a Federal Court (IRS, FBI, NSA) on
criminal charges is not fun. Federal cases and potential Federal influence must
always be considered with any state criminal or even non-criminal charge.
Federal Influence on New York State Traffic (i.e. speeding) Violations
National Driver Registry (the NDR) and Federal law, 23 CFR 1327.5(b)(1)
They (any state) will eventually find out about any outstanding traffic offenses in
any other state, upon either your application for a driver's license or your renewal
of a driver's license.

What is the NDR?

The National Driver Register (NDR) is a computerized database of information
about drivers who have had their licenses revoked or suspended, or who have
been convicted of serious traffic violations such as driving while impaired by
alcohol or drugs. State motor vehicle agencies provide NDR with the names of
individuals who have lost their privilege or who have been convicted of a serious
traffic violation. When a person applies for a driver's license the state checks to
see if the name is on the NDR file. If a person has been reported to the NDR as a
problem driver, the license may be denied.

Remember, any untaken care of traffic violations will default to a license
(privilege) suspension in New York State. This is not a maybe, it is a fact.

License = a privilege to drive in that state (whether you have a license there or
someplace else).

How it (NDR) works:

When a person renews or applies for a driver's license in any state the MVA
(Motor Vehicle Association) must check to see if the name is on the NDR
Problem Driver Pointer System (PDPS) (as required by federal law--see 23 CFR
1327.5(b)(1))

All Motor Vehicle Associations must check you under Federal Law 23 CFR
1327.5(b)(1).

*The state that gave you any license "privileges" only has jurisdiction/authority
over your "privileges" in that state, but if you drive in any other state during that
time (of driving), you have an assumed driving privilege in that state.

KEY TAKEAWAY:

Violations, even non-criminal offenses, can have a long and deep Federal impact
upon your life: whether that is your ability to complete your education, your ability
to drive a car, and/or your ability to get a job.

In New York State, a driver's license (or privilege) can be suspended for many
different reasons. Remember NYS can ONLY suspend privileges of Out-of-State
holders, they can't suspend your home state license, only your home state can
do that.

By Attorney Mike Cyr and Larry Newman

CALL US: 607-229-5184

Email:  mike.ithacadwi@gmail.com

COPYRIGHT CYR & ASSOCIATES 2015

www.ithacadwi.com

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Ithaca Bath DWI lawyer: It is ILLEGAL to sentence an Ignition Interlock Device for VTL 1192.4 DWAI Drugs in New York

Some weed in a Car....DWAI Drug VTL 1192.4 (Driving While Ability Impaired By Drug)

It is ILLEGAL to sentence an

Ignition Interlock Device

if you are convicted ONLY of

DWAI Drug (VTL 1192.4)! 

There is a common misconception among Justice Courts and Probation Departments in upstate New York that it is appropriate to order an Ignition Interlock Device for 1 year for a person convicted of a SINGLE COUNT of DWAI Drug (VTL 1192.4). 

IT IS NOT TRUE.

I recently had a case where my client had pled guilty to a SINGLE COUNT of DWAI Drugs.  However, she also had regular alcohol-related DWI charges at the start of the case.  Due to the plea deal I made with the Prosecutor, we decided that pleading guilty to one count of DWAI Drugs made sense, in part, due the fact he would not have to get an Ignition Interlock Device on her car.  

The Probation Department performed a "Pre-Sentence Investigation" (aka PSI) of her life to make a recommendation to the Judge before sentencing.  During their investigation, they discovered other alcohol-related issues in my client's past.  As a result, they recommended the installation of an Ignition Interlock Device for 1 year (even though the law doesn't allow this sentence). 

What does the law say?

The Ignition Interlock Device sentence is found in Penal Law section 65.10(2)(k-1):

"The Court may require the IID condition only where a person has been convicted of violation of VTL 1192.2 (DWI over .08), 1192.2a (Agg. DWI .18), or 1192.3 (DWI common law), or any crime defined by the VTL ("Vehicle and Traffic Law") or this chapter of which an alcohol-related violation of any provision is an essential element."  

There is more information in Vehicle and Traffic Law, section 1198(2)(a) and 1198(3)(d)

ALSO, this provision was challenged in the New York Courts in 2012.  In People v. Levy, the Appellate Court (2nd dept) found that it was an imposition of an illegal sentence to make an Ignition Interlock Device part of a VTL 1192.4 sentence for a Felony DWAI drug conviction.   Here is a link to the case.  

Why should you care?

Unfortunately, I've seen many instances of Town and Village Court Justices who do NOT understand this provision and attempt to sentence people to an IID when it is ILLEGAL.  

That is why it is important to be represented by an attorney who handles DWI and DWAI drug cases on a frequent basis.  These kinds of cases are full of pitfalls for the inexperienced criminal defense attorney (or even the general criminal practitioner).  

DWI and DWAI drug cases are a subsection of law all their own.  

Do you have questions about a DWAI Drug or DWI case?  

Give me a call:  607-229-5184

Email me:  mike.ithacadwi@gmail.com

By Attorney Mike Cyr

Cyr & Associates

www.ithacadwi.com

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Ithaca Watkins Glen DWI lawyer: How a Blood Test DOESN'T test your actual Blood in New York!

(image courtesy picturequotes.com)

HOW YOUR BLOOD GETS TESTED IN NEW YORK....WITHOUT EVER TESTING

YOUR ACTUAL BLOOD...

Huh?  What you say?  

If you are suspected of drugged driving or drunk driving in New York, then you will likely be subject to a BLOOD TEST by the police.  

If you give or are forced to give a sample of your blood to be tested in a New York crime lab, then your blood itself... WILL PROBABLY NOT BE TESTED.  

Instead, the gas portion of a vial containing your blood will be tested. 

WHAT AM I TALKIN' BOUT? 

--------

Let me break it down.  There are two common ways to analyze and separate compounds in liquid like human blood.  

1.  Gas Chromatography (where the actual liquid is heated into gas form and tested) 

[see this post]

AND...

2.  HEADSPACE Gas Chromatography (where only the GAS from a liquid sample is tested)

I'm referring to #2.   

What is "Headspace Gas Chromatography" ?  

It is basically the same process as regular Gas Chromatography; however, only the vapor from a liquid is measured and broken down by the machine (instead of the liquid itself...).  

Why does that matter if they use this method of testing on your blood in a DWI or DWAI drugs case? 

...BECAUSE IT CAN BE INACCURATE.

Problems with Headspace Gas Chromatography

1.  Twice the amount of potential error as regular Gas Chromatography:

The blood is taken by a human from your arm (possible error), then the blood is warmed in a vial until the liquid sample reaches "equilibrium" with the gas inside the vial (possible error).  Then a human removes a sample of the gas inside the vial (possible error). 

2.  The principle of measuring the GAS instead of the Blood itself is the same as in breath testing.  It relies on a scientific principle called "Henry's Law."  

Henry's Law states: 

1. In chemistry, Henry's law is one of the gas laws formulated by William Henry in 1803. It states: "At a constant temperature, the amount of a given gas that dissolves in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid."  (Wikipedia)

From the definition, you can see that temperature can affect the validity of any sample.  Also, if the sample has NOT reached "equilibrium" then the sample itself would be invalid.  

3.  There are additional chemicals added to the blood sample to "help along" any alcohol rising into the GAS portion of the vial.  These are called "salting agents."  Chemically, it is possible that these added chemicals could create a HIGHER CONCENTRATION OF ALCOHOL in any gas sample... called a false positive. 

IF YOU ARE CHARGED WITH DWAI Drugs or DWI and you 

gave a sample of your blood to police, call us:  

607-229-5184

Send me an email:  mike.ithacadwi@gmail.com

Copyright Cyr & Associates 2015

By Mike Cyr

www.ithacadwi.com

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Ithaca DWAI drug lawyer: How is BLOOD evidence Tested in New York? GAS CHROMATOGRAPHY

image courtesy of web.nnsu.edu

Testing Blood Evidence in New York:

Basics of GAS CHROMATOGRAPHY

for DWI and DWAI Drug Cases

As you can imagine, the process of testing a liquid and breaking down its molecular compounds is a very complicated one.  However, this page should help break down the absolute basics of how your BLOOD gets tested after a DWI or DWAI drug charge in any of the New York forensics laboratory.  

New Mexico State University has a terrific page set up covering the basics.

GAS CHROMATOGRAPHY:  a common type of analysis used by chemists to separate and analyze compounds that can be vaporized without decomposition.  (Wikipedia)

HOW DOES IT WORK?

1. Your Blood sample is broken down into multiple samples to be input into the machine  

2.  Your blood is heated in the main part of the machine so that it turns into vapor (gas)

3.  It takes different chemical compounds different amounts of time to change from the stationary phase (when it's liquid) to the mobile phase (when it's gas)

4.  The blood sample travels along a "column" that is very long (can be 15-60 meters) so that the various compounds inside your blood get separated

5.  The length of the column gives plenty of time and space for the various compounds inside the sample to be separated from one another [the goal is to achieve separation]

6.  Upon reaching the end of the column, the separated compounds exit and get read one by one and a computer creates a CHROMATOGRAM that is read by the chemist. 

Example of a Chromatogram, image courtesy of clinchem.org

PROBLEMS WITH BLOOD GAS CHROMATOGRAPHY


UNLIKE BREATH TESTING where only one person is tested at a time, blood gas chromatography usually involves many different defendants' samples are tested simultaneously. The chemist or forensic technician could be testing 100s of blood samples AT THE SAME TIME.  This creates a large margin for error.  It provides many opportunities for things to go wrong...It raises many questions for me as a DWAI drug or DWI defense attorney.

Was your sample labeled properly and separated from other defendants?  Was the machine working properly?  When was it last calibrated?  Was the mobile phase gas working?  Was it heated right?  Did the chemist properly extract your blood from the vacuum container?  Could somebody else's blood contaminate the column before your sample is read?  Did the compounds actually separate at the end of the column? Did any compounds come out repeatedly?  

As you can see, there are a million ways this process can go wrong.  That is why it is so critical to be able to understand and read the chromatogram itself.  The chromatogram can show us if there was contamination, if the samples were properly separated, and if problems exist.  You just need to understand how to read it.  You also need to understand what a proper chromatogram looks like versus one that has problems on it.  It is such a specialized scientific process that it is important to have a DWI or DWAI drug defense attorney who understands the science and handles these sort of cases on a regular basis.

Do you have questions about a DWAI drug case or DWI case where your blood was taken?

Call us:  607-229-5184

E:  mike.ithacadwi@gmail.com

By Attorney Mike Cyr

www.ithacadwi.com

www.facebook.com/ithacadwi

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COPYRIGHT CYR & ASSOCIATES 2015

Ithaca Criminal Lawyer: Boating While Intoxicated or DWI on the water!

Jaws is my all-time favorite movie.  (image courtesy of borg.com)

BOATING WHILE INTOXICATED

(BWI) in New York

Yes, there is such a thing as BWI -- or DWI on the water!  Boating is a very popular past time in Ithaca, New York and in the Finger Lakes region and drinking on a boat is very common during the spring, summer, and fall.  

BWI is similar to a DWI charge but there are many differences.  This page is designed to help answer some of your questions with respect to BWI in New York.  We defend BWI cases every year as part of our practice.

NY BWIs fall under Navigation Law section 49-a. 

1. Similar to DWI and DWAI (alcohol) there are a BWI (misdemeanor) and a BWAI (violation). BWI is a criminal charge that could lead to a permanent lifetime criminal record.

2. The legal standard (definition) for BWI (intoxication) and BWAI (impairment) for water operation of a craft are comparable to operation of a car or motorcycle on land. They both relate to a person's mental and physical abilities to operate a boat in a reasonably prudent fashion.

3. You are only in danger of losing (suspension) your license to operate a BOAT not your car. The boating suspensions are 6 months and up for the BWAI (violation level), and one year for the BWI (misdemeanor).

4. There are specific boating safety classes required with both BWAI and BWI.

5. The classes have to be either state sanctioned, US Coast Guard, or US Power Squadron safety classes.

6. There is a "contribution" (around $200) to the "I Love New York" Safe Boating Fund.

7. The fines range from $350- $500 for a BWAI, and $500- $1,000 for a BWI.

8. The BWI and BWAI will be reported on your New York DMV driving abstract, so your auto rates will eventually be affected by your boating charges. If you are from out of state it is likely that this will also go on your state's DMV record because NY has an interstate compact with many adjoining states and the National Driver Registry is a federal database that every DMV in the country can access.

9. The BWI is a criminal charge and will affect your entry into Canada in the future.

10.The BWAI violation is also going to affect your ability to enter Canada because it is an alcohol-related offense.

11. If you refuse the Breath Test back at the station (not to be confused with the preliminary breath test on the roadside) you will face many of the same consequences, i.e. increased boating license loss, additional fines, as a DWI test refusal.

12. The BWI has a 0.08% BAC (breath alcohol concentration) standard, same as a DWI. 

13. There will be additional NY state surcharges of around $240 for a BWAI, and $400 for a BWI.

14. There are two types of BWI, a BWI "per se" offense based only upon your BAC (0.08% or more) and a BWI "common law" based upon the officer's observations, field sobriety testing, and other evidence of intoxication. Same as DWI.

15. Since NY state has no expungement statute a BWI (misdemeanor) will remain on your permanent criminal record forever.

16. BWIs are defended much the same way as DWIs. The state (the prosecutor) still has the burden of proving you were intoxicated at the time of operation. The breath machine can be challenged for accuracy, validity, and reliability. The officer's tests can be shown to be administered improperly or scored with bias.

*As of now, You will not lose your privileges to DRIVE A CAR with a BWI.  However, there is legislation in the NY Senate called "Tiffany's Law" that has been pending for many years.  If passed, it would possibly link BWI with DWI type penalties, including loss of car driving privileges. It is worth consulting with a BWI attorney if charged to make sure this remains the case as time wears on.

If you have questions about a Boating While Intoxicated

charge in New York, you can call our office at:

(607) 229-5184. 

email:  mike.ithacadwi@gmail.com

 

BY ATTORNEYS MIKE CYR and LARRY NEWMAN

COPYRIGHT CYR & ASSOCIATES 2015

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