Articles Posted in DWI / DUI

This matter is before the Court for sentencing under Leandra’s Law New York’s newest anti-DWI measure wherein the defendant pled guilty to DWI driving while intoxicated pursuant to Vehicle and Traffic Law § 1192 (3).

One month after the DWI death of 11-year-old Leandra Rosado in New York City, the State enacted Leandra’s Law on 18 November 2009 requiring all first-time, misdemeanor DWAI https://dwi.1800nynylaw.com/new-york-dwai-lawyer.htmloffenders install ignition interlock devices in every automobile they own or operate for at least 6 months. It further requires, barring indigency, that offenders pay for installation and maintenance of the interlocks. However, like so many products rushed to market prematurely, Leandra’s Law exhibits numerous defects imperiling its constitutionality.

The court faces the issues to be considered from the State’s failure to establish determinate ignition interlocking costs. The first is whether the indeterminate nature of the cost of installing and maintaining ignition interlocks invalidates the requirement defendants pay for the devices, given the cost is statutorily classified as a fine and therefore constitutes a criminal punishment. That issue informs a related, New York constitutional concern whether the State violated New York constitutional law by failing properly to promulgate a final interlock cost list. Moreover, the court will examine whether the lack of a statutory metric for determining a defendant’s ability to pay for the ignition interlock violates equal protection because it may lead to arbitrary enforcement. Also at issue on equal protection grounds is whether requiring defendants to interlock every auto they own or operate is justifiable.

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This wrongful death action arises out of an automobile accident due to drunk driving that occurred sometime between the hours of 9 and 10 p.m. when a man went to a bar to celebrate the end of tax day. The celebration was for the employees and spouses of the man’s accounting firm. Ten to fourteen peopled attended the celebration. The owner of the bar and a waitress, who served drinks to the party, were also present. The record reveals that the celebrants ate appetizers and drank alcohol throughout the night. Prior to arriving at the bar, the man drank a beer at his office. After arriving at the party, the man continued to drink alcohol. Specifically, the waitress indicates that the man was served approximately six vodka and cocktails. Also, a complimentary bottle of Aguardiente Antioqueno, was served to the party. Typically, a bottle of Aguardiente Antioqueno has an alcohol content of 29%.

At trial, two testified that the man took at least one shot of the Aguardiente on the night in question. Another testified that around 1:00 a.m., the criminal man appeared to be intoxicated. The wife of the man also attended the celebration to be her husband’s designated driver. However, she took shots of Aguardiente, drank vodka and cocktails. The woman subsequently appeared intoxicated. Based upon the time of the accident, it appears that the two left around 1:00 a.m.

The driver of the dump truck testified that he was transporting asphalt. Prior to starting the task, he performed a 20 to 25 minute inspection of the truck. Specifically, he examined the interior and exterior of the vehicle. He determined that the lights on the vehicle were in satisfactory condition, the tires did not have physical damage and had a satisfactory tread depth and pressure, the wheels and rims of the vehicle were in satisfactory condition, the steering was in satisfactory condition and there was no overdue preventive maintenance required on the vehicle. He completed three trips prior to the accident.

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People v. Fountain

Court Discusses Whether the Defendant Evinced a Depraved Indifference to Human Life

The defendant was indicted for manslaughter in the second degree and criminal negligent homicide in connection with the deaths of two pedestrians, assault in the first degree in connection with serious physical injuries inflicted upon another pedestrian and driving while intoxicated. At the trial the investigating officer testified that the defendant told him that he was driving thirty miles per hour when he hit the victims. Another officer testified that the defendant had a .23 blood alcohol content and he observed that the defendant had an unsteady on his feet, slurred speech and his breath smelled of alcohol. The surviving witness testified that he was struck by the defendant when he was in the crosswalk with the light in his favor. At the trial, it was brought out that the lighting conditions were good and the defendant car was in proper mechanical condition. Further, autopsy report revealed that victims who died injuries were consistent with being struck by an automobile. The defendant was acquitted of the manslaughter and criminally negligent homicide counts by the trial judge. The defendant was convicted in the Supreme Court, Queens County, of assault in the first degree and operating a motor vehicle while intoxicated, DWI, by a jury and driving while intoxicated by a non-jury trial. The defendant appealed.

People v Murphy

Court Discusses Whether the Sentence Imposed was Excessive in Driving While Intoxicated Offenses

The defendant was convicted of aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2-a) (b), driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2), and driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). The defendant was sentenced to a definite term of one year on each count that would run concurrently. The defendant appealed the sentence on the ground that it was excessive. The defendant was granted a stay of execution of the sentence pending decision of the Appellate Division.

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Rodriguez v. Wolfe

Court Discusses Whether Forum Non Conveniens Precluded it from Exercising Quasi in Rem Jurisdiction

The decedent who was a passenger in one of the motor vehicles involved in a car accident died in Florida after the defendant was DWI driving while intoxicated. The defendant pled guilty and was sentenced for vehicular manslaughter. The administrator of the decedent’s estate sought to attach insurance policy issued to the defendant in connection with the cause of action arising out of accident in Florida. The decedent was a member of the United States Navy who resided in Florida but was a domiciled in New York prior to entering the Navy. The decedent’s administrator who was his father was a domicile of New York as well as the fact that the estate was being processed in New York, demonstrated that the estate was a resident of New York. The criminal defendant however opposed the motion on the ground that New York was not the appropriate forum but Florida was the forum to bring the motion.

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Lynch-Fina v. Paredes

Court Discusses Whether Section 388 of the Vehicle and Traffic Law was Limited to only Negligence

The plaintiff, who was the administratrix of the estate of the decedent, who was a young infant bought an action against the defendants who were the owner of the motor vehicle and the driver of the motor vehicle. The driver of the motor vehicle pled guilty to manslaughter in the second degree. The owner of the motor vehicle requested summary judgment as the liability under section 388 of the Vehicle and Traffic Law imposed on her as owner only extended to negligent acts rather than negligent and reckless conduct. The defendant used the case of Ingle v. Mark, 58 Misc.2d 895 where there was a refusal by the criminal court to make the owner guilty of punitive damages because the driver had acted in a grossly negligent manner.

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In November 2007, defendant was charged with violating one count of Section 1192.2 of the New York State Vehicle and Traffic law (Driving While Intoxicated [DWI]), a misdemeanor, and one count of Section 1192.2(a) of the New York State Vehicle and Traffic law (Aggravated DWI), also a misdemeanor.

A Nassau County Criminal lawyer said that a pre-trial hearing was ordered to determine defendant’s motion to suppress. Thus, in October 2008 a hearing was held to determine the admissibility at trial of evidence obtained against the defendant. The People produced the arresting officer, as a witness to testify. The Police Officer is a member of the Nassau County Police Department. The criminal defendant did not call any witnesses.

Based upon the credible evidence advanced at the hearing, the Court concludes the following: In November 2007 the Police Officer was working the night tour of duty. He was in a marked police vehicle, in uniform and working alone. At approximately 12:15 A.M. He received a radio call of a motor vehicle accident in the vicinity of East Shore Road in Great Neck. Upon his arrival the Officer observed a vehicle with extensive front end damage in the middle to left lane of traffic on the northbound side. The defendant was standing directly next to the vehicle. The Officer asked defendant where he was coming from and defendant replied he was “coming back from school to visit his girlfriend.”

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People v. Carroll

Court Discusses Whether the Defendant was Permitted to Inspect Grand Jury Minutes

The defendant was indicted for driving an automobile in a reckless, culpable and negligent manner, thereby causing another’s death, and misdemeanor of driving automobile while intoxicated. The defendant requested an order granting him inspection of grand jury’s minutes or dismissing indictment filed on November 30, 1956.

This is a custody and visitation proceeding pursuant to Family Court Act article 6 wherein the father appeals from an order of the Family Court of Kings County dated 9 November 2009, which awarded sole custody of the subject children to the mother and only awarded him visitation from Monday at 6 P.M. to Wednesday at 6 P.M. on alternate weeks, with additional visitation upon agreement of the parties.

The criminal court affirms the order, without costs or disbursements.

Friederwitzer v Friedewitzer and Matter of Francois v Hall held that an award of custody must be based upon the best interests of the child, and there is no prima facie right to the custody of the child in either parent. Eschbach v Eschbach established that in considering questions of custody, the court must make every effort to determine what is in the best interest of the child, and what will promote the child’s welfare and happiness. Moreover, it should be noted that he best interests of the child are determined by a review of the totality of the circumstances.

In this proceeding, a man seeks to enjoin the district attorney from prosecuting an indictment which was filed by the grand jury. The man asserts that the district attorney lacks jurisdiction to proceed.

The matter was started when the man was arrested and charged with assault in the second degree, a class D felony. He was also charged with two class A misdemeanors which includes resisting arrest and DWI and obstructing governmental administration in the second degree. The man was then arraigned upon the felony complaint in the criminal court.

The man’s attorney appeared in the court and the assistant district attorney made an oral application to the court for an order reducing the matter to a misdemeanor complaint by striking the charge. Then, the court responded by transferring the matter to a different part, and it is apparent that both the parties and the court itself took it to mean that the prosecution’s application had in fact been granted.

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