Sunday, December 30, 2012

Ithaca Cortland Attorney: How to Handle a New York Ignition Interlock Violation


My Realistic Practice GOAL

I have a goal for every legal seminar or conference I go to, and every DWI book or DVD I buy. I want to walk away with at least one good idea.

I try to keep my expectations low, I'm not looking for 50 great ideas, just one and sometimes that one thing may mean the difference to someone I represent. I recently went to two New York DWI conferences in NYC (actually one was held in Brooklyn, but close enough) and got some great DWI defense ideas.

One of the speakers was discussing what to do when clients violate their ignition interlock device. Before I give you what I learned we need a little background and context.

BAC = blood alcohol concentration
IID = Ignition Interlock Device

BAC IID Violation Levels

People can have a series of small (less serious) but frequent violations or just one big (serious) violation. I have had clients blow .03 BAC to a .11 BAC first thing in the morning. The determination (definition) of seriousness (the line so to speak) is a BAC of .05 or higher. Remember in NYS: impairment is assumed at a .06 BAC, and intoxication at .08 BAC.

What is the Most Common Reason for a IID Violation?

The most common violation occurs after a night of drinking and a morning breath test. This is a very bad combo because it takes time to absorb alcohol and it takes time to eliminate alcohol from your body. Normally or generally most people can eliminate about a drink an hour, or .02 per hour. Now this rate can vary of course. It varies based upon your genetics, state of health, food eaten, types of drinks consumed, etc. Bottom LINE: If you don't give your system (your body) enough time to process ALL of your consumed alcohol, your blood and breath are going to demonstrate (and reveal) alcohol.

Will the County IID Monitor Violate You?

It depends upon the reason for the violation. First, is it because the device is malfunctioning or needs calibration? Or is it because your BAC (blood alcohol concentration) was truly high?

When they violate YOU, can they prove it was really YOU? 

If you have a level one device in your car then maybe someone else blew into the device and not YOU.
Level one devices do not have cameras. Level 3 devices have cameras.

If you violated, then the Judge and the ADA (Assistant District Attorney) may re-open sentencing on your DWI case. They could place you in jail for up to a year, place on probation for three years, they could have you re-evaluated, they could extend the time that the device is on your car, extend the time of your CD (conditional discharge) or any combination of these.

My grand advice, and what I learned at my DWI seminar is to:
have your attorney discuss your violation with the County Monitor. 

1. The County Monitor (usually the Probation Department) CAN Make a recommendation in your case. This will be looked upon by the Judge and by the ADA. In fact, in many situations the ADAs give the Probation Department's recommendations great weight.

2. The Probation Department usually seeks to be fair and appropriate in these situations. In New York State they have many Probation Policies, one of which is GRADUATED SANCTIONS. I call them ratcheted sanctions, going up in small increments based upon the scale and severity of the infraction.

This may help limit your exposure to punishments beyond what would be appropriate based upon your prior dealing and plea negotiations with this Judge and/or Prosecutor. Sometimes one good idea may be the only thing that stands between YOU and jail.

Law Offices of Lawrence Newman
Ithaca, New York