BACKGROUND/INTRO: On October 11, 2009, 31 year old Carmen Huertas left a party in Manhattan with seven children in her station wagon. It’s alleged that Huertas had been drinking during the party. On the trip back to the Bronx, she lost control of the car and crashed into a wooded area along the highway. Three of the children who were riding in the back compartment were ejected onto the roadway. When emergency responders arrived, they found one of the girls unresponsive. Suffering from blunt force injuries to her head and torso. She was transported by ambulance to the hospital where she was pronounced dead. That girl was 11 year old Leandra Rosado.
By now you’ve heard of “Leandra’s Law” which accomplishes two goals: first to increase the penalty for driving drunk with children in the vehicle, and second, to increase the use of the ignition interlock device. The provisions of the law for DWI with a child passenger took effect on December 18, 2009. The law relating to the expanded use of the ignition interlock applies to individuals sentenced on or after August 15, 2010.
I recently spoke about Leandra’s Law with Mary Kavaney, Deputy Secretary for Public Safety for the State of New York.
KAVANEY: This law was really designed to give law enforcement more tools to get at people who are driving while impaired by drugs and alcohol. We had some horrific crashed the last year, both the crash that killed Leandra Rosado as well as the Taconic crash, so it became very apparent to the Governor’s office that we had adults driving with children in the vehicle.
SPAWN: Secretary Kavaney talks about the elements to the new aggravated DWI
KAVANEY: So the new enhanced DWI basically states that as of December 18th, if you are .08 or impaired by drugs and you have some 15 or less in the vehicle that as a first time offender you’re now guilty of a Class E felony.
SPAWN: Leandra’s Law was in effect for a very short time before arrests starting making headlines
KAVANEY: We have seen, the first weekend we had at least have a dozen of the new felonies charged, the first 72 hours after the law came into effect, and you would be very, very surprised and sort of dismayed at the individuals charged with this. We’ve had physicians, we’ve had principals, a principal charged with her nine month old son with a .10 at 7:00 in the morning.
SPAWN: Leandra’s Law brings in enhanced penalties for persons convicted. Again, Mary Kavaney . . .
KAVANEY: A minimum mandatory of six months of an interlock, a mandatory in position of a interlock, as well as requiring the police officer to make a CPS report that the person that is the parent, guardian or legal custodian of that child was the defendant driving that vehicle.
SPAWN: We’ll talk more about some of the specifics of the interlock ignition devices and the mandated reporting to the state central register. In addition to the changes in the V&T, Leandra’s Law also brought about changes to the penal law.
KAVANEY: Now we have vehicular assault in the first degree, which is a Class D non-violent which as you, know can get up to seven years in state prison, if the person commits vehicular assault second but also has the child in the vehicle. So basically, the nature of the new assault sections is if the child here is 15 or less in the vehicle it upgrades it by one felony. So it takes and creates the aggravated vehicular assault and says that at this time if you commit aggravated vehicular assault and also reckless driving with a child it’s a Class C violent. So, all of these assaults and the manslaughters and the homicides are upgraded by one felony degree if there’s a child 15 or less in the vehicle.
SPAWN: According to a document published by the National Highway Traffic Administration, technology presents exciting possibilities in the area of impaired driving prevention. One promising strategy is the breath alcohol ignition interlock device. This is an after-market device that is installed in a motor vehicle to prevent a driver from operating the vehicle if the driver’s been drinking. Before starting the vehicle, a driver must breathe into the device. If the driver’s BAC is over a preset limit an ignition interlock will not allow the vehicle to start.
I recently spoke with Robert Maccarone the state director for the division of probation and correctional alternatives. I asked him what a police officer can expect to see in a car that has been equipped with an interlock device.
MACCARONE: Well for the most part, what the police officer will see is really a tube to blow into because the real computer aspect will be under the dash and hooked into the electronics of the automobile and in the engine compartment. So there won’t be a lot for the police officer to see.
SPAWN: How does this device work?
MACCARONE: The person gets into the motor vehicle and blows into the device, and that measures, actually a level greater than .025 is what we call the set point, so a very low threshold, every time a person starts an automobile with one of these devices they’ll be tested, if they fail that test, they’ll be given a period, 5 to 15 minutes, where they’ll have to wait and restart the car.
SPAWN: Even though the car has been successfully started that doesn’t mean that a driver can keep the car running.
MACCARONE: There will be a series of rolling tests that will occur while a person’s driving the automobile and they’ll be prompted to take the tests.
SPAWN: I asked Director Maccarone what happens if a driver fails the initial test, fails a rolling retest or misses a rolling retest.
MACCARONE: If they blow a bad test on a rolling test then the retest is prompted with one to three minutes so we’re not gonna allow an operator under the influence of alcohol to drive very far. Within the next minutes they’re gonna be prompted. There are reasons. The reason that there is a rolling retest, as well as a startup retest, is that there are legitimate reasons people fail these exams. Sometimes there cleansing their hands with Purelle, they’ve eaten an inappropriate, you know, some type of food that can certainly cause the machine to give them a false, what’s called a false positive. But their trained on those behaviors and they quickly adapt what will send that machine to cause a violation. Those instruments are extremely sensitive and extremely reliable.
SPAWN: Not only will these devices lockout the ignition for an impaired driver they also keep a record. Again, Bob Maccarone . . .
MACCARONE: What they will do is they will record each and every test and the results, so every time the operator gets into that motor vehicle they will record the results of that exam. Every retest, every rolling test, every rolling retest, and every missed test as well as every attempt to tamper or circumvent the device is all recorded. There are various technologies I should add Mark ranging from one instrument that you go in every 30 days and you download the data and its sent to the manufacture all the way to the extreme of real time GPS, real time reporting.
SPAWN: Now here’s something that patrol officers should be aware of. Something they may encounter in the field when a driver fails or misses a rolling retest.
MACCARONE: Then what happens is that the automobile goes into a lock out mode. That causes two things to occur. First of all, a siren within the instrument within the vehicle causes the operator to pull over to the side of the road and restart the vehicle. So you must shut off the vehicle and restart. Frankly, it’s untenable to continue to drive that automobile with the siren blaring within the vehicle. So there’s a protection there. But there’s an added condition too, and that is once you have a failed retest just one failed retest, or a failed rolling retest, the operator of that vehicle must bring that vehicle into the installation service center within five days or the vehicle will become completely immobilized.
SPAWN: The director also explained that it’s a Class A misdemeanor to circumvent an ignition interlock. For instance, by having someone else blow into it the device. And he also mentioned that technology in some of these devices is helping to eliminate those situations.
MACCARONE: What the manufacturing industry has done, is now in the process of implementing cameras so it’s actually taking the picture of the person blowing into the instrument so we have photographic evidence that the person blowing into the instrument is indeed the operator.
SPAWN: I asked the director the impact of the interlock devices on the number of DWI convictions in the State of New York.
MACCARONE: First of all we have 25,000 convictions for DWI in New York State each year. Nine thousand offenders are sentenced to probation supervision, 3,000 felonies and 6,000 misdemeanors. And the other 16,000 dispositions are basically writing a check to the court for a fine and walking out of court. With Leandra’s Law over the course of the next year all 25,000 beginning August 15, 2010 will be required to install an ignition interlock device in their automobile.
SPAWN: And what can we expect to see in cases involving conditional discharge?
MACCARONE: About 70 percent of the condition discharge cases, which are misdemeanors of course, will not return to the court. That’s our experience, they learn, they change their behavior and they will not return to the court.
SPAWN: And the impact to public safety?
DEWEESE: Of course, with fewer drinking and driver arrests, that means there’s less drinking and driving out there that’s occurring. Safer highways fewer arrests, fewer bookings, fewer prosecutions and fewer people in our county jails.
SPAWN: As a result of the tragic death last year of 11 year old Leandra Rosado and the heroic advocacy of her father Lenny Rosado, New York State now has the toughest anti-drunk driving law in the nation. And this summer the consequences for this potentially deportable offense would be greater, even for first time offenders. In closing I’d like to stress two points. One, even first time drunk drivers will have to install interlocks if their sentenced after August 15, 2010; and two, keep in mind that if someone is convicted of DWI prior to August 15, but sentenced afterward, they are subject to the interlock provision.