Saturday, February 6, 2016

Ithaca Corning DWI lawyer: Penalties for multiple DWI offenders upheld in NY in 2015

Map of New York Judicial Departments

NY's LAWS FROM 2012 
UPHELD IN 2015...

In case you did not know, the New York DMV has been cracking down hard on individuals charged with multiple instances of DWI.   The possible punishments range from having to complete an OASAS certified alcohol or drug rehabilitation course to a LIFETIME revocation of driving privileges without leave to appeal... 

Here is a summary of the 2012 rules:   [ 15 NYCRR s. 136.5 ]

Penalties for multiple offenders

New regulations took effect on September 25, 2012 that affect drivers with multiple alcohol/drugged-driving related convictions or incidents. The highlights of how these changes affect persons applying for a driver license after their license is revoked are provided below.
  • Applicants with three or four alcohol/drugged-driving related convictions or incidents within a 25 year period, without a serious driving offense and whose revocation does NOT result from an alcohol or drugged driving conviction or incident, will be denied relicensing for two years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for two years. A serious driving offense is a fatal accident, a driving-related penal law conviction, conviction of two or more violations for which five or more points are assessed, or 20 or more points from any violations.
  • Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, without a serious driving offense and whose revocation DOES result from an alcohol or drugged driving conviction or incident, will be denied relicensing for five years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for 5 years with an ignition interlock.
  • Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, with a serious driving offense will be permanently denied a driver license, unless there are compelling or extenuating circumstances.
  • Applicants with five or more alcohol/drugged-driving related convictions or incidents on their lifetime driving record will be permanently denied a driver license, unless there are compelling or extenuating circumstances.
  • Applicants with two or more alcohol/drugged-driving related convictions or incidents within the preceding 25 years will be required to serve their entire sanction period (suspension or revocation) even if they complete the Drinking Driver Program (DDP) and will be required to submit proof of rehabilitation.

After these rules came out, there was some questions by DWI defense attorneys as to whether the Courts would uphold these far-reaching rules/punishments as Constitutional under New York or Federal law.  

As of 2015, we know that YES--the Courts will uphold them. 

There were two cases last year that solidified the Commissioner of the Dept. of Motor Vehicles powers to enact and punish individuals who fit into the above-listed criteria... 

Matter of Acevedo v. New York Dept. of Motor Vehicles

In August 2015, the Third Department Appellate Division (the 2nd highest Court in the land --and the court that geographically covers Ithaca, NY) came down with a decision of where 3 of 5 judges agreed with the powers of the Commissioner to create and enforce the rules listed above.  In the case, Acevedo had a DWAI (alcohol conviction) in 2003, then DWI convictions in 2006 and 2008.   So he had three non-serious alcohol-related convictions in a 25 year period which would result in a 5 year ban on his license plus 5 years of ignition interlock device after relicensing with a restricted license...  

This was the first case challenging the new law set forth by the DMV.  And it lost. Basically, the court found no wrongdoing on the part of the DMV and went even further to say that there was no constitutional problem with the enacted rules.  And even worse for my clients, the court goes on to say "a driver's license is "a personal privilege subject to reasonable restrictions and revocation by [the Commissioner in] her discretionary powers," not a vested right."  This means that there are fewer protections for a driver's license --and it can be taken from you easily in NY. 

Matter of Carney v. New York Dept. of Motor Vehicles

In November 2015, a driver with 5 alcohol-related convictions who got an automatic LIFETIME driving ban challenged these laws.  Once again, in a 3-2 decision, the Third Dept. Appellate Division, agreed with the DMV and stated that this lifetime ban "does not exceed the scope of the Commissioner's rule-making authority." 

Twice in 2015, the Appellate Division backed up the DMV's authority to make and enforce these rules to protect the roads and the public from people who continue to drink and drive... 

What does this mean if you get a DWI?

If you get ANY DWI --whether it is the violation DWAI, or a misdemeanor DWI ...if you get a second one in 25 will be subject to the lesser of these rules (complete an alcohol course).  If you get a third, you're looking at losing your license for at least 5 years plus 5 more years of Ignition Interlock device.  Any more than that, and you could potentially lose it forever...

QUESTIONS?   Give me a call:  607-229-5184


Educational Purposes Only.  Copyright CYR & ASSOCIATES 2016.

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Thursday, February 4, 2016

Ithaca Seneca Watkins DWI lawyer: NTSB wants to lower legal limit to 0.05% BAC

Logo of NTSB

NEWS:  National Transportation Safety Board (NTSB) asking Congress to lower 
federal drunk driving limit from 0.08% to 0.05% BAC nationally!

It's not that shocking from a news perspective.  The NTSB and the National Highway Traffic and Safety Admininstration (NHTSA) have been working to lower the legal limit for drunk driving for decades.  Back in the 1970's it was 0.15....then it was lowered to 0.10...then finally to 0.08% where we stand now. 

Even if Congress acted, the states would have to individually approve the change--but the federal government usually leverages that change with funding incentives tied to making the change. 

Here are a few articles about the proposed change: 

What would this mean for New York drunk driving laws?

There would be a few HUGE changes.  

1.  More people would get a permanent criminal conviction. 

New York does not have any criminal expungement statutes.  If you are convicted of a misdemeanor or felony, then you will have a life-long criminal conviction that will affect you negatively forever.  That's a pretty big deal. 


Right now, if you are pulled over and your breath test reads 0.05% BAC, you are presumably NOT IMPAIRED by alcohol.  You could get a charge of Driving While Ability Impaired by Alcohol --but it could be successfully fought and defended in most cases.  Even if convicted, you would only be guilty of a traffic infraction. 

If the law changed to 0.05% legal limit, then the cops would be charging people with MISDEMEANOR level DWI.  Not a simple traffic infraction.  

2.  More people would get in serious trouble when using the Ignition Interlock Device.

Currently, if you are sentenced to an Ignition Interlock Device on your car, the level where you could be violated for having alcohol is 0.05%.  That is the threshold level for when you get into trouble. 

However, if the legal limit were 0.05%, then I imagine the IID threshold would also be lowered to like 0.03% or 0.02%.  If that happened, then more and more false positive IID violations would be prosecuted and people could be punished by Judges for possible technical glitches on these already touchy machines. 

3.  Aggravated DWI thresholds would be lowered from 0.18% to what? 

It stands to reason that if one level lowers, then all threshold levels will be lowered. So what will the new Aggravated level be?  Right now it is 0.18%.  Would it be closer to 0.10?  

If that happens, more people would be charged with this higher form of DWI in NY.

4.  Would the Felony DWI statutes be changed?

It begs the question--would New York still charge DWI felonies the same way?  Two misdemeanors in a 10 year period... or base it on very high BAC levels --like the current Aggravated DWI levels of 0.20 or higher?  


It would be hard to predict the outcome of such a dramatic change.  Some people can drink several drinks and not reach 0.08%.  But some people could drink 1 beverage and hit 0.05%...and how impaired would that person be?  Everybody is different.  Everybody handles alcohol in their body differently.  It changes based on experience drinking, height, weight, age, gender, body temperature, empty stomach or no, etc, etc, etc

When does impairment start?  I have not seen the definitive scientific research that says we all are impaired at 0.05% BAC.   

I agree that impaired driving is dangerous and should be avoided.  However, tying an arbitrary number to impairment is probably not the best way to legislate this issue --in my educated opinion.

BY ATTORNEY MIKE CYR               607-229-5184

For Educational Purposes Only.  Copyright CYR & ASSOCIATES 2016. 

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Wednesday, February 3, 2016

Ithaca Cortland DWI lawyer: Drug or Alcohol-related conviction...and your Car Insurance in NY!

image courtesy

is Affected by a New York DWI or DWAI (alcohol) or DWAI drug conviction

So it's now February 2016, and I've started getting all of my insurance renewal paperwork in the mail.  Every year around this time, we get loads of paperwork about our homeowner's policy, our car policy, our life insurance polcy -etc, etc, etc 

Crippling us with paper.  But...have you ever read any of the reams of paper that comes with a car insurance renewal policy?  

Nowadays, most car insurance companies literally spell out what will happen to your policy if you get convicted of a DWI or DWAI drug charge.  

Here's the exact language from my renewal paperwork I just got in the mail: 


"Suspension or revocation of your driver's license (or the driver's license of the person who normally operates an automobile insured under your policy) is just cause for your insurance company to cancel your automobile policy.

A conviction of driving while impaired or intoxicated through the use of alcohol or drugs will probably result in non-renewal of your insurance policy, and in your inability to obtain insurance with another company in the voluntary market.  You will then find yourself relegated to the New York Automobile Insurance Plan (Assigned Risk Plan), at a substantially higher cost.

Currently, under the Assigned Risk Plan, a conviction of operating a motor vehicle while intoxicated or impaired by use of alcohol or drugs will result in a 75% surcharge, increasing your automobile insurance premiums for 3 years.  Most automobile insurance companies will also surcharge your premiums substantially for any convictions of operating a motor vehicle while under the influence of alcohol or drugs."

In a nutshell, the insurance company spells out that if you are convicted of a DWI or the lesser DWAI alcohol or DWAI drugs --then they can and will drop you from coverage.  They also go on to tell you that the only kind of car insurance you can likely get is from the State of New York's Insurance Plan at a significantly higher cost. 

New York has made getting a DWI extremely expensive.  The legislature has gone after impaired drivers in their wallets!  Some of the obvious costs of a DWI are:

-court surcharges
-DMV driver responsibility fees
-Ignition Interlock Device costs
-relicensure costs

....but car insurance is probably the biggest cost of them all.  

Here's the final kicker for car insurance and a DWI: 


...then your car insurance company NO-FAULT benefits will NOT be available to you (except for necessary emergency medical services---that the insurance company can seek to have you pay them back later!).  


The insurance companies have smart lawyers who have drafted policies that protect the company from their insured drivers who are convicted of DWI.  If you hurt somebody, then your company will sue you for any money they are initially forced to dole out to people you hurt.  


Cyr & Associates 2016


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