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DWI Law Update: IIDs, Portable Breath Tests and Driving – What We Need to Know

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

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DWI Law Update: IIDs, Portable Breath Tests and Driving – What We Need to Know

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  1. DWI Law Update: IIDs, Portable Breath Tests and Driving – What We Need to Know

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

  3. Leandra's Law included two main provisions: • Aggravated DWI/Child in Vehicle. The law establishes this new Class E Felony. The law states that no person shall operate a motor vehicle under the influence of alcohol or drugs while a child who is 15 years of age or younger is a passenger in the vehicle. • VTL § 1192(2-a)(b)]

  4. And… • Ignition Interlock Requirement

  5. Became Effective Aug 15th • Starting on August 15, 2010, every case with a VTL 1192(2), (2-a), or (3) plea (or post-trial conviction to those charges) AND where the defendant has not yet been sentenced, must include a conditional discharge or term of probation AND a condition of such sentence must be the installation of an ignition interlock device. • Applies to cases where the date of occurrence was on orafter November 18, 2009.

  6. Does Not Apply to: • VTL 1192(1), • 1192(4) or • 1192(4-a).

  7. Mandatory • There is no judicial discretion in the legislation. • Not for first time offenders, not for out of state drivers, not for out of NYC drivers that were visiting at the time of the incident, not where the defendant's license is revoked for 6 months and he promises not to drive during the revocation. • Everyone pleading to those three charges must be sentenced under these new procedures.

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

  9. The New Creation - DWI Splits • Under the PL, the maximum jail time on a misdemeanor split sentence (with probation or a CD) is 60 days. That has now changed with DWI pleas to 1192(2), (2-a) and (3). According to newly enacted PL 60.21, it is being read to permit two significant changes. • First - a CD or probation term must be imposed even if a jail term of up to one year is imposed. [So even though the maximum split sentence on a penal law felony is six months, a DWI misdemeanor split can be a 9 month split, a one-year split, etc.]

  10. Second…. • unlike with Penal Law splits, the CD or probation sentences on these DWI splits are to run consecutive to the jail term.

  11. Types of IIDs • 2 that will be available in NY: Class I and Class III devices. • Some say Class I is appropriate for first time offenders, while the Class III device is the most appropriate for the repeat offenders. • Most if not all judges are all ordering Class III in all cases.

  12. Approved Devices • Of the 9 devices that have been approved for use in New York State, 4 are class I devices and 5 are class III devices. There are no approved Class II devices. In general, class III devices are more expensive than class I devices. • Details on the features of each approved device are available at http://dpca.state.ny.us/pdfs/allignitioninterlockdevicesavailableandfeaturesasof15Aug2010.pdf.

  13. Class I • A Class I device has the following features: 1) meets all New York State Department of Health and National Highway Traffic Safety Administration Regulations and Standards, 2) utilizes fuel cell technology; 3) Reporting capabilities; 4) capabilities for storage of data; 5) programmable Re-Test Sequences; 6) data download; 7) inspection and re-calibration service, and 8) anti-tampering and anti-circumvention features.

  14. Class II • A Class II device has all the same features as a class I device plus photographic positive identification capability (camera or biometric facial recognition).

  15. Class III • A Class III device has all the same features as Class I and Class II devices plus: 1) GPS location of vehicle capability; 2) real time data reporting; 3) Infra-red or other low-light camera capability for night use; 4) Hum Tone Detection; 5) Infra-red sensor that detects heat and proximity to verify human breath; 6) keys enabling service codes to be entered

  16. Class III Continued • 7) early recall system if a fuel cell fails-uses split cell technology; 8) restricted drive time capabilities; 9) unlock code to minimize towing due to lockouts;10) voice instruction, 11) probation/Judicial Internet Access for Real-Time Monitoring 24/7; 12) 911 Emergency Response Program for Interception of a Targeted Vehicle During a Rolling Re-test Failure, and 13) Target Tracking

  17. How the IIDs Work • A defendant with an IID has to blow into the device to start the car and his BAC needs to be less than a .02. (This apparently factors in for things like mouthwash or cough syrup being used normally.) If he fails, he will be prompted to take a re-test within approximately 15 minutes. If he fails again or does not take the re-test, the car goes into "lock out mode" and only the IID maintenance people can get a car out of lockout mode (for an additional fee, of course, and a report to the NY County IID Monitor).

  18. Rolling Tests • IID will also prompt the driver to conduct a "rolling test" which occurs every 30 minutes or so while the car is being operated. When that happens, the defendant again takes the test

  19. Failing “Rolling” Test • A re-test is prompted but if the driver fails the "rolling re-test" the car begins to give off what is described as an unbearable sounding, high-pitched horn/whistle/squelch that was made to “force” the driver to immediately pull the car over and get out to escape the sound. • Once shut off the car goes to lock out mode.

  20. Costs • Approximately - installation fee for a Class I device is in the $75 - $80 range, with a monthly maintenance fee of between $69 and $75. • The Class IIIs are more expensive, with an approximately $100 installation fee and a monthly maintenance fee between $75 and $110. Like all things the “hope” is that competition will make prices competitive.

  21. Service Centers • OPCA has released a list of ignition interlock device service centers (as of August 17, 2010), which is organized by county. The list is available at http://dpca.state.ny.us/ignition.htm.

  22. Can’t Afford? • Some arrangement has been made with the state and the IID manufacturers/installers that they would absorb some percentage of free IIDs, and the court has the discretion to either set up a payment plan that the defendant can afford (extended, for example, beyond the term of the IID, so that a defendant with a 6 month term of IID could pay it over the 12 months of the cd or the 36 months over the term of the probation sentence) or grant a fee waiver.

  23. A Hearing? • OCA and DPCA (Division of Probation and Correctional Alternatives) have come up with a Financial Disclosure Form which is two pages long. • No magic formula to determine whether or not a defendant truly cannot afford an IID, a fully completed form will provide the court with substantive financial information (which has been self-reported by the defendant and with no means of verification).

  24. New Forms • The ACD/CD form is being changed to include a check box for IIDs. There are check boxes for duration of 6 months, one year, or other • A new form entitled "Orders and Conditions of Probation or Conditional Discharge Related to Ignition Interlock Devices" has been developed.

  25. How does it Work?

  26. Consequences • If a person fails to provide proof of installation, absent a finding of good cause for the failure which is entered in the record, the court may revoke, modify, or terminate probation or conditional discharge as provided by law.

  27. From Division of Criminal Justice Memo of 3/30/11 • In recent months, a surprisingly large number of DWI offenders have not installed ignition interlock devices, representing that they no longer “own or operate” a motor vehicle, and that they will not do so during the time period the Ignition Interlock Device is required. Nevertheless, the condition is imposed on their driver’s license and record. The IID license restriction attaches to their driver’s license and record even if they do not “own or operate” a motor vehicle.

  28. In the past, this license restriction was automatically removed by DMV after set periods of time which did not necessarily correspond with the actual periods of time during which the restriction was applicable. At OPCA’s [The Division of Probation and Correctional Alternatives (DPCA) is now known as the Office of Probation and Correctional Alternatives (OPCA)] request, DMV changed this protocol, leaving the restriction in place until officially notified by the court, probation or other monitor that the time frame for IID provisions of the sentence had expired.

  29. On Probation • If the operator is on probation, the probation department must adhere to 9 NYCRR Part 352 (Graduated Sanctions and Violations of Probation).

  30. VTL § 1198(9)(d): A person who is subject to a court ordered ignition interlock device who operates a motor vehicle without such a device (except for employer vehicles under certain circumstances discussed below) is guilty of a class A misdemeanor. (Effective December 18, 2009) • It was already an unclassified misdemeanor to violate VTL § 1198(7)(a): “Any requirement of this article or the penal law that a person operate a vehicle only if it is equipped with an ignition interlock device shall apply to every motor vehicle operated by that person, including, but not limited to, vehicles that are leased, rented or loaned.”

  31. Defendant’s Obligations • The defendant must install a functioning ignition interlock device in all vehicles he/she owns or operates within 10 business days of the condition being imposed by the sentencing court, or if sentenced to imprisonment, upon release. [9 NYCRR 358.7(c)(1)]

  32. Proof • The defendant must provide proof of installation to the court, probation, and any other designated monitor within 3 business days of installation.

  33. VTL § 1198(4)(a): • If the defendant fails to provide proof of installation, absent a finding (entered in the record) by the court of good cause for the failure, the court may revoke, modify, or terminate the defendant’s sentence of probation or conditional discharge.

  34. VTL § 1198(3)(c) • provides that the DMV commissioner may revoke a post-revocation conditional license for sufficient cause, which includes failure to install or maintain a court ordered ignition interlock device.

  35. Court Should order the defendant when he/she is sentenced that: • The defendant must install an ignition interlock device in all motor vehicles that he/she owns or operates, including vehicles that are leased, rented, or loaned.

  36. Also now class A misdemeanors. [VTL § 1198(9)(e)] • No person whose driving privilege has been restricted by VTL article 31 or the Penal Law shall request, solicit or allow any other person to blow into an ignition interlock device or to start a motor vehicle equipped with the device for the purpose of providing the person so restricted with an operable motor vehicle;

  37. [VTL § 1198(9)(e)] • No person shall blow into an ignition interlock device or start a motor vehicle equipped with the device for the purpose of providing an operable motor vehicle to a person whose driving privilege is so restricted; and

  38. [VTL § 1198(9)(e)] • No person shall tamper with or circumvent an otherwise operable ignition interlock device.

  39. Employee’s Vehicles • If a person who is subject to an ignition interlock condition must operate his/her employer’s motor vehicle in the course and scope of his/her employment, the person may operate the vehicle without an ignition interlock device only during the course and scope of such employment and only if:

  40. VTL § 1198(8) • the employer has been notified that the person’s driving privilege is restricted; and • the person provides the court and the probation department with written documentation indicating that the employer knows of the restriction and has granted permission for the person to operate the employer’s vehicle without the device only for business purposes.

  41. Employer’s Vehicle • The person must notify the court and the probation department of his/her intention to operate the employer’s vehicle. • The employer vehicle exception does not apply when the motor vehicle is owned by a business entity and the entity is all or partially owned or controlled by the person subject to the ignition interlock condition.

  42. Administrative Regulations • See 9 NYCRR 358.3 • VTL § 1193(1)(g) requires OPCA to promulgate regulations “governing the monitoring of compliance by persons ordered to install and maintain ignition interlock devices to provide standards for monitoring by Probation

  43. 9 NYCRR 358.4 • Counties were required to create program plans regarding usage of ignition interlock devices and monitoring of operator compliance, which had to be filed with OPCA by June 15, 2010 to be effective on or before August 15, 2010. Counties were required to consult with the probation director, the district attorney, the sheriff or police commissioner, the STOP-DWI coordinator, a representative of its drinking driver program, a superior and local criminal court judge designated by the deputy chief administrative judge, and a representative of an agency providing public defense services designated by the county executive.

  44. County Plans • County plans will be/are available on OPCA’s website at http://dpca.state.ny.us/ignition.htm. • Get your County’s plan if you haven’t seen it. • There is one plan for NYC

  45. Further Resources • The National Highway Traffic Safety Administration website includes several publications regarding ignition interlock devices • Ignition Interlock Devices- What You Need to Know: A Toolkit for Policymakers, Highway Safety Professionals, and Advocates (http://www.nhtsa.gov/staticfiles/nti/impaired_driving/pdf/811246.pdf) • Key Features for Ignition Interlock Programs (http://www.nhtsa.gov/staticfiles/nti/impaired_driving/pdf/811262.pdf) • The Use of Alcohol Ignition Interlocks for Reducing Impaired Driving Recidivism (http://www.nhtsa.gov/Driving+Safety/Impaired+Driving/The+Use+of+Alcohol+Ignition+Interlocks+for+Reducing+Impaired+Driving+Recidivism) • http://itunes.apple.com/us/podcast/new-york-state-division-criminal/id377702406

  46. IIDs • All of the devices certified for use in New York State use fuel cell technology. Most states are moving away from the other ignition interlock devices that use semiconductor technology. A basic description of both types of ignition interlock devices is provided in the Traffic Injury Research Foundation’s 2001 publication, Best practices for alcohol interlock programs, which is available at http://www.interlocksymposium.com/site/ywd_acs_corporation/assets/pdf/2000_BestPracticesReport_-_Douglas_J._Beirness.pdf.

  47. NYSDH • The New York State Department of Health is responsible for creating certification criteria and testing requirements for ignition interlock devices. Those criteria and requirements appear in 10 NYCRR Part 59

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