Thursday, April 3, 2014

S-1446 New York Law NOW Mandates Police Test with a DWI Accident involving Injury

Yay Schoolhouse Rock
I used to love this cartoon,
"I'm just a Bill on Capitol Hill"


The New York Senate just passed another new DWI bill. Bill S-1446 now creates a New Police Testing REQUIREMENT of those "suspected" of being under the influence (drugs and/or alcohol) and who are involved in an accident with serious injury or death. This testing requirement could be blood, breath, and urine. Remember the Police can test as much as they would like, even all three.
This Chemical Testing REQUIREMENT is Mandatory under the new law.

In addition, the reasonable cause threshold shall be met by merely the sufficiency of an ACCIDENT.  This will then meet the requirement to REQUEST and/or ORDER the testing. Any judge can sign an order to force a test without a driver's consent.

Current police practice (before Bill S-1446) was DISCRETIONARY Chemical Testing following an accident with serious injury or death. In other words the law enforcement officer (I love LEO) decided.

In it's original form Bill S-1446 states "injury" in numerous places and not "serious physical injury." Whether the final version of the bill will delineate between the two is uncertain.

Serious Physical Injury is defined under Article 10 of NYS Penal Law:

"Serious physical injury" means physical injury which creates a
substantial risk of death, or which causes death or serious and
protracted disfigurement, protracted impairment of health or protracted

loss or impairment of the function of any bodily organ.

Remember that anyone can argue that something is SERIOUS. 

What is protracted impairment or just impairment of ANY bodily organ? In the heat of the moment many tests will be ordered and required. Our 4th amendment right to be free of unreasonable search and seizure again threatened by law. In some states they are now strapping people to boards at roadside or in the back of squad cars and taking blood. They have NO Refusal weekends even without an accident so I guess compared to that NYS is not quite that draconian.

One of the trends that I now see are judges, prosecutors, and even the police losing their discretionary powers. First, NYS created mandated ignition interlock devices, then mandated time periods for these devices, then mandated alcohol and drug evaluations, mandated license suspensions and revocations, and the list goes on and on. 

Some things (conditions) are still decided on a case by case basis and of course can be argued and defended. NYS still has a wide range of punishments associated with the majority of charges and offenses both criminal and non-criminal. Judges and prosecutors can still have a hand in all of that but many other categories I see regulated to the REQUIRED label.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

For those of you too young to remember, this is how we learned old school about bills and stuff, schoolhouse rock!

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Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers


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