December 20th, 2013
Using a hand held mobile device while driving (phone, text, email), the penalty for a first offense still involves a maximum fine of a $150 fine plus surcharges. The point violation increases from three to five points for offenses committed on or after June 1, 2013.
For violations that occur after July 26, 2013, a second offense within 18 months results in a maximum fine increase to $200 and a third or subsequent offense within 18 months the maximum fine increases to $400.
Drivers with probationary licenses (Class DJ or MJ) have these various penalties with the addition of a mandatory 60 day license/permit suspension. A second such conviction within six months results in a revocation of at least six months for a probationary license or a revocation of at least 60 days for a Class DJ or MJ driver’s license or learner’s permit.
Exceptions to the law involve (1) a driver using a completely hands free device which allows the user to communicate without the use of either hand; (2) using a hand held device that is affixed to a vehicle surface; (3) using a GPS device that is attached to the vehicle for the purpose of placing a phone call to police, fire, EMS or other medical providers in the event of an emergency; or (5) when operating an authorized emergency vehicle in the performance of its official duties.
Additionally, as of October 28, 2013, the laws regarding commercial drivers are modified such that carriers must not allow or require the drivers to use these devices while driving. Additionally, a mobile phone used by a person operating a commercial vehicle is not deemed to be “hands free” if the driver dials or answers the mobile phone by pressing more than a single button. If the commercial vehicle is temporarily stationary because of traffic, a traffic control device or other momentary delays, use of these devices is still prohibited. An operator of a commercial vehicle holding a device to or in the immediate proximity of his/her ear engages a presumption that the individual is using the device.
These increased sanctions are ultimately designed to prevent accidents that result from distracted driving. Similar to drunk driving laws, this is a predictable reaction to increase public awareness over the problem, especially in light of tragic losses of life caused by distracted driving.
December 24th, 2012
As of the end of September, 2012, the New York State Department of Motor Vehicles has new regulations pertaining to drivers with multiple alcohol/drug-related driving convictions. This is a logical result from the increasing sanctions that pertain to Driving While Intoxicated or Driving While Impaired by Drugs offenses enacted by the Legislature.
These new regulations define a “persistently dangerous driver” as one who has had five or more alcohol/drug-related driving offenses or convictions in their lifetime or a motorist who in the last twenty-five years has had three or four alcohol/drug-related driving convictions plus one “serious driving offense”. Motorists with the “persistently dangerous driver” finding are to be permanently denied re-licensure, however, that permanent disqualification may not occur to the extent that the motorist demonstrates “compelling or extenuating circumstances”.
The regulations provide that if a current revocation for an alcohol-related offense involves a motorist with three or four similar prior convictions and without any serious driving offense in the last twenty-five years the denial of re-licensure shall be a period of five years in addition to whatever the statutory revocation period was for the current offense and with any subsequent re-licensure resulting in a restricted use license, as well as the requirement to install an ignition interlock device for a five year period.
To the extent that the current conviction is for a non-alcohol-related offense but results in some form of a revocation penalty, the Department of Motor Vehicles will deny re-licensure for two years in addition to whatever the statutory revocation period was for that particular offense and then re-license with a restricted use license for a period of two years, however, the ignition interlock device would not be required in that circumstance because the latest conviction would not have been alcohol-related.
Lastly, motorists that have two or more alcohol/drug-related driving convictions within the prior preceding twenty-five years are required to serve their entire suspension or revocation period even to the extent that they have completed the Drinker Driver Program.
The Department of Motor Vehicle already had an internal system for governing the timing of re-licensure in the event of revocations and these new regulations simply increase and strengthen those which have already existed.
The difference between a suspension and a revocation is that the suspension allows for the license to be returned following a relative short period of time whereas a revocation is akin to the license being destroyed such that the motorist is then required to reapply to the Department of Motor Vehicles to request that a new license be issued. Despite how important the ability to drive is in our society, the ability to maintain a driver’s license is a privilege as opposed to a right.
As a result, this is simply another example of why all should be very careful when operating their motor vehicles after consuming alcohol or drugs.
December 12th, 2012
From time to time, and particularly during the holiday season, I am asked by kith and kin alike about the responsibility a homeowner has to prevent people from drinking too much at a holiday party. Concerns range from the health of the person drinking copious quantities of eggnog to the legal liability and of the host who provided the eggnog. I cannot offer an opinion on the healthy amount of eggnog, but I can provide some insight into issues that may arise when a drunk guest leaves a party and injures someone.
Without turning this into a legal brief, in New York State the basic rule is that an adult host of a party (whom we’ll call Martha) is not legally liable or responsible if an adult guest (whom we’ll call W.C.) has too much alcohol and then drives away from the party causing some injury to a someone else (we’ll call her Sue). So if Martha spiked the eggnog and W.C. imbibes too much eggnog and then injures Sue, Martha is not responsible for W.C.’s actions and the law will not support a lawsuit against Martha.
The line can get blurred when an adult host provides alcohol to an under-age guest who then leaves the party and injures someone else. In that situation, if W.C.’s son (call him Chester) consumes too much eggnog, and Martha is aware of Chester’s drinking and lets it happen, then Martha has some legal responsibility. Sue can take Martha to court for her role in Chester getting drunk and injuring Sue. Also, W.C. can take Martha to court for the injuries sustained by Chester.
To be sure, it is generally unlawful for an adult to provide alcohol to a minor. The law recognizes a parental exception, but still does not permit intoxication by the minor even if the parent approves.
So eat, drink, and be merry including, but not limited to, encouraging responsible behavior toward alcohol [this is no way should be interpreted as an endorsement of alcohol consumption by minors or to excess by anyone, and prior results do not guarantee similar outcome]. That may seem at odds with the merrymaking, but when you’re making memories, you should at least keep in mind the ability to recall them.
March 20th, 2012
Vehicle and Traffic Law Section 1225-c, which initially became effective in 2001, prohibits individuals from operating a motor vehicle while using a mobile telephone to engage in a call while the vehicle is in motion. The law provides specific definitions including that “using” refers to the individual holding the phone to or near the user’s ear. “Engaging in a call” refers to talking into or listening on the device, but does not include holding the phone to “activate, deactivate or initiate a function of” the phone. This law then further provides a presumption that a driver holding the phone to or in the “immediate proximity” of his/her ear while the vehicle is in motion is in fact engaging in a call. The motorist has the opportunity then to defend against this presumption.
March 9th, 2012
HoganWillig has the capability, legal resources and dedication to assist clients in various practice areas. This includes criminal defense for white-collar crimes ranging from forgery, bribery, insurance fraud, healthcare fraud, credit fraud, mortgage fraud, and welfare fraud. White-collar crimes are a unique legal area because many people may be unclear about what white-collar situations exactly entail or may be unaware of HoganWillig’s great defense accomplishments.
One success story involves a client indicted on 28 felony counts and 867 acts of Medicare and Medicaid fraud. Healthcare fraud occurs when a person knowingly and willfully provides false information or omits information in order to request payments from a health plan that they are not entitled to. The degree of the crime varies depending on the length of time the crime occurs and the amount of money obtained. HoganWillig’s teamwork approach brought the charges down to a conviction of only one misdemeanor. That’s in comparison to a sentence of approximately 56 years for the previous accusation!
February 17th, 2012
Article 26 of the New York State Vehicle and Traffic Law covers right of way violations. Two statutes pertain to emergency vehicles and one has recently been modified to apply to hazard vehicles. The obvious goal of the legislature in creating these statutes is to protect the safety of individuals who are in the process of responding to an emergency or who are in a vulnerable position on the side of a road while doing their jobs.
Vehicle and Traffic Law Section 1144 in essence requires a driver to yield the right of way and to immediately drive to the right hand edge or curb of the roadway (or to either edge of a one way roadway with three or more lanes) and then to stop and remain stopped until the emergency vehicle has passed unless otherwise directed by a police officer. This section requires the emergency vehicle to be immediately approaching with at least one emergency red light visible from a distance of 500 feet and with the sounding of an audible signal such as a siren.
October 4th, 2011
Last week, the Buffalo News reported that a 29-year old driver with 2 prior convictions for DWAI has been charged with DWI in connection with his arrest for driving the wrong way down the Thruway. The question in everyone’s mind is: “if this is his third offense, why wasn’t he charged with a felony?” The defendant is being charged with a misdemeanor, which is considered a crime and is punishable by up to one year in jail, but he won’t be charged with a felony. Here’s why:
His two prior convictions were for Driving While Ability Impaired. DWAI is defined as a traffic infraction, not a crime. Even though it’s an infraction, a defendant convicted of DWAI can be sentenced to up to 15 days in jail. A second conviction for DWAI within 5 years is also considered traffic infraction, but carries additional fines and a possible jail term of 30 days.
If he had one prior DWI conviction within the past 10 years, he would be charged with a Class E Felony. If he had two prior DWIs within 10 years, he would be charged with a Class D Felony. However, the rule is not the same where a defendant, like the one in this article, is charged with Misdemeanor-DWI after having two prior DWAI convictions. If he is convicted of DWI, the court will certainly take his prior convictions into consideration at sentencing.
In this case, the District Attorney could choose to also charge him with DWAI as a “lesser-included offense” in order to increase the likelihood of securing a conviction. The DA would have discretion whether to charge it as an infraction or as a misdemeanor because this is his third DWAI within 10 years. The defendant is entitled to have proper notice at the beginning of the case as to what he is being charged with. If the DA chooses to charge “Misdemeanor DWAI,” the DA will have the burden of proving the existence of the two prior convictions within the past 10 years. A conviction on this charge will carry increased fines, up to 180 days in a penitentiary or county jail, or both.
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