Anelli Xavier Opens Buffalo Office
The Syracuse–based law firm of Anelli Xavier has opened a new office in Buffalo, adding to its existing upstate offices in Syracuse, Rochester, and Albany.
The firm, which focuses solely on de- fending clients accused of driving while intoxicated (DWI), has handled cases throughout New York, says Tom Anelli, managing attorney at Anelli Xavier.
Anelli spoke to the Business Journal News Network on Aug. 14. The Anelli Xavier firm is headquartered at 269 W. Jefferson St. in Syracuse.
The Buffalo office opened in July, says Anelli. The firm also has plans for additional offices in other areas of New York state. “In 2015, we hope to open in the Hudson Valley … probably an office in White Plains … and then, also hopefully in 2015, we hope to open in Long Island,” Anelli says. (more…)
DWI and Blood Testing
When the police stop a suspected DWI offender in Syracuse, rarely is the motorist required to undergo a blood test. Typically, an officer will tell the suspected offender who appears to be drunk to get out of the vehicle, walk a straight line and recite the alphabet. If the suspect fails those tests, the police officer usually asks the suspect to blow air into a device that measures alcohol in the blood, called a breathalyzer.
A blood test is a fall-back measure, an option for when a suspected DWI offender refuses
to take a breath test. In New York State there is an implied consent statute which states that any person who operates a motor vehicle in the state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood. Thus, you give consent to a chemical test simply by driving in the state.
The most accurate and direct determination of a suspected DWI offender’s blood alcohol content (BAC) is obtained through analysis of a blood sample. There are several advantages of a blood sample over other kinds of BAC testing. Blood tests are relatively inexpensive, there is a reduced likelihood that the person administering the test can interfere with the results, and a blood sample, unlike a breath analysis, can be saved indefinitely. The disadvantages of a blood sample in DWI cases are that it takes longer to obtain the results of a blood test, and the procedure is more invasive and carries certain health risks.
In every state, including New York, refusing to take a sobriety test can result in the suspension or revocation of a suspected DWI offender’s driver’s license. In the case of Missouri v. McNeely, the Supreme Court considered whether it should set aside the requirement for search warrants to take blood tests from suspected DWI offenders. In the case, a state patrolman stopped Tyler McNeely for speeding about 2 a.m. on October 3, 2010 in Missouri. Mr. McNeely failed roadside sobriety tests and refused to take a breath test. Mr. McNeely faced a possible prison term because he had previous convictions for drunk driving. The officer took Mr. McNeely to a nearby hospital, and without stopping to request a search warrant, he told an orderly to take a blood sample from him. A lab reported Mr. McNeely’s blood alcohol level was .154 percent, nearly double the legal limit of .08 percent. (more…)
Different Approaches to Reduce Drunk Driving
Drinking and driving is an issue that exists around the globe. Efforts to reduce the problem also exist around the globe. Countries and even regions or states within the same country may vary their approach to drinking while intoxicated (DWI).
Broome County, New York, USA
One approach, a deterrence program, is found right here in our own Binghamton backyard. Broome County’s STOP-DWI (Special Traffic Options Program for Driving While Intoxicated) is a program that aims to reduce DWI incidents. The program funds added law enforcement patrol and prosecutorial staff and equipment. STOP-DWI also aims to increase public awareness about the ramifications of DWIs. This program is self-sustaining – all the funding provided by the group originates from the fines imposed upon those convicted of DWIs.
DWI is a crime that carries stiff penalties in the state of New York. If convicted of a DWI in Binghamton or anywhere in the state of New York – penalties that can be imposed include: license suspension or revocation, fines and possibly jail time.
Last year, as noted in UPI.com, France imposed a controversial new law wherein all drivers are required to carry a Breathalyzer-type device in their vehicles. The law was temporarily suspended when there was a shortage of the devices in stores but the law has since been reinstated.
In a proactive effort to curb DWI incidents, drivers in France – including those vacationing in France – are required to have a breath test kit in their vehicle. The idea is that before a driver that consumed alcohol starts a vehicle – the individual will test their blood alcohol content (BAC) to determine whether or not they are within the legal limit to drive. Currently, the BAC in France is 0.05. Initially, the law imposed a nominal fine if a driver did not have the breath test kit. That fine has since been withdrawn – so it is uncertain as to how the law will be put in force or what effect it will have on the deterrence of DWIs. (more…)
The Alcotest Breath Analyzer
The Alcotest 7110 breath-alcohol analyzer is used in a number of states including New York, Massachusetts, and Alabama. This device is manufactured by a Pittsburgh company called Draeger Safety, Inc. Draeger is a German company that makes breath-alcohol products that are listed on the National Highway Traffic Safety Administration Conforming Products List of Evidential Breath Measurement Devices. The Draeger product line includes a device that incorporates both infrared and fuel cell technology, the Alcotest 7110.
Features of the Alcotest 7110
The main feature of the Alcotest 7110 that sets the device apart from other equipment is its capacity to measure alcohol by its absorption of infrared light at 9.5 micrometers, while most other devices measure absorption at 3.4 micrometers. Another unique feature of the Alcotest 7110 is that it incorporates a fuel cell detector in addition to the infrared absorption detector.
When a DWI defendant’s breath sample passes through the breath chamber of the machine, the infrared light that shines through the chamber excites the molecules of alcohol, but does not destroy them. After passing through that chamber, the breath passes through the electrochemical detector and is analyzed by that detector. The single breath sample is analyzed twice for alcohol, once by absorption of the 9.5 micrometer light and once by the fuel cell. Fuel cells are very specific for alcohol and analysis of the breath sample by two independent methods ensures reliability.
Reliability of the Alcotest 7110
The Alcotest 7110 has been determined to be a scientifically reliable and accurate device for measuring breath alcohol. In a 2003 New Jersey case, State v. Foley, the Superior Court considered the scientific reliability of this breath instrument. The court found it to be reliable, basing its decision on the opinions of a number of experts, including Dr. Kurt Dubowski, who testified on the acceptance of both infrared breath alcohol testing and fuel cell alcohol analysis as well as his own experience testing Alcotest devices. In the case of State v. Chun, the New Jersey Supreme Court found that the Alcotest 7110 is scientifically reliable when the test protocol is followed by the operator and the instrument is functioning properly. (more…)
Motorcycles and DWI’s
This summer, New York State Police worked with Orchard Park Police in New York to conduct a “Motorcycle Safety and Education Detail.” During, the detail, police checked over 500 motorcycles at a checkpoint on California Road and issued 95 uniform traffic tickets, 55 were for the use of illegal helmets. One notable arrest was of a 43 year old male who was arrested for Driving While Intoxicated. The motorcycle checkpoint was brought about as a part of Motorcycle Safety Month. (more…)
History of DWI Laws
There is currently a great deal of scientific technology for use in DUI (Driving Under the Influence) cases. The offense is known as DWI, or driving while intoxicated, in New York and some other states. However, in the 1930’s and 1940’s, there were no strict DUI laws. In 1910, New York became the first state to pass a law regulating the offense of DWI. In the 1930’s, some states enacted drunk driving laws but most drunk drivers were only prosecuted if their blood alcohol concentration (BAC) level was .15% or greater. This is almost twice the legal BAC limit in effect today in most states. The establishment of .15% as the first commonly-used legal limit for BAC came as the result of research by the American Medical Association which showed that a driver with a BAC of .15% or higher could be medically proven to be intoxicated. (more…)
Effectiveness of DWI Checkpoints
DWI checkpoints are used in several of the states across the country. The Supreme Court has held that DWI checkpoints are constitutional, and therefore, they are consistently used. Several advocates for the continued use of DWI checkpoints focus in on their effectiveness of deterring people from driving drunk. (more…)
Juvenile DWI in Albany
Motor vehicle crashes, many of which are alcohol related, account for a very high percentage of injuries and deaths among young people. The organization Mothers Against Drunk Driving (MADD) focuses much of its legislative lobbying efforts on the issue of teenage drunk driving. Prior to the mid-1980’s, the minimum drinking age from state to state varied between eighteen years to twenty-one years. Because youth between the ages of fifteen and twenty make up the largest percentage of alcohol-related fatalities, MADD lobbied for laws to raise the minimum legal drinking age to twenty-one. This legislation was signed into law in 1984 and by 1988, all fifty states had complied.
In 1995, President Bill Clinton signed legislation that encouraged states to enact “zero tolerance” laws, which made it illegal for individuals under the age of twenty-one to drive after drinking any alcohol at all. By 1998, all states had complied by passing such legislation. Under New York’s Zero Tolerance law, any person under the age of twenty-one who drives with a blood alcohol content of .02 percent or more may have their driver’s license revoked for at least six months. If the minor is convicted and is adjudicated a youthful offender for DWI, the revocation period is at least one year. If the minor has a prior DWI offense, the revocation period will be at least one year or until the minor reaches the age of twenty-one, whichever period is greater.
As of 1996, in all states it became illegal to sell alcohol to persons under the age of twenty-one. It is illegal In New York for anyone under the age of twenty-one to possess alcohol with the intent to consume it. It is also against the law for anyone under the age of twenty-one to use fake identification to purchase alcohol. Tampering with a New York State driver’s license can result in the loss of that license for 90 days.
Private individuals can be sued if they provide alcohol to anyone under the age of twenty-one and subsequently, the minor then injures others. Parents or guardians in New York can provide alcohol to their children, but only in their home. Businesses selling alcohol to people under the age of twenty-one can be sued for injuries to third persons as a result of the minor’s actions. The New York State Liquor Authority is responsible for taking action against licensees who violate the minimum drinking age law. Following an administrative hearing, the State Liquor Authority may revoke, cancel or suspend a license to sell alcoholic beverages and impose a penalty against the licensee of up to a $1,000 bond for a violation of these laws. (more…)
Will New York Follow the DWI Shaming Law Trend?
Many people expect that a driving while intoxicated (DWI) conviction would lead to serious consequences such as fines, driver’s license suspension, or even jail time. But what if a conviction would also lead to some very public humiliation? Is public humiliation an effective deterrent to driving while intoxicated or impaired? Some states and cities think so, and that trend appears to be growing.
In 2006, the Albuquerque, NM City Council passed a law requiring that the mug shots of convicted DUI offenders be published in city newspapers. The idea behind this law was to shame the offenders so much that they would not repeat their crimes, and that others would not be tempted to drive while intoxicated or under the influence. If that law seems a bit excessive, check out the Ohio law that requires special license plates for some DUI offenders. Any Ohio driver that is convicted of a DUI can be required to install DUI-specific license plates on their vehicle. These bright yellow and red plates alert other motorists (and police officers) that the driver has been convicted of a DUI at least once.
Minnesota has a similar law that can require convicted offenders to utilize a “whiskey plate.” Minnesota whiskey plates feature a prominent letter “W” on the license plate preceding other letters and numbers. Like the Ohio and Albuquerque laws, this whiskey plate law is intended to shame drivers with DUI convictions and serves as very public warnings not to drink and drive. In 2013, one Minnesota police department took the DWI shaming tactic to Twitter. The department posted the names of every driver arrested for DWI, even though those drivers had not been convicted of the crime. (more…)
South Dakota Man Challenges State DUI Practices
A DUI case in South Dakota has gone from routine to potentially altering police practice in that state. A South Dakota man convicted of driving under the influence in 2008 is appealing that decision to the state’s highest court, claiming that police acted unconstitutionally when they collected blood evidence. It is common practice in South Dakota for arresting officers to draw blood from suspected intoxicated drivers in order to test the driver’s blood alcohol content (BAC) level. Police take a blood sample at the time of the arrest before the alcohol can dissipate in the bloodstream. This practice is designed to ensure a more accurate BAC at the time of the arrest. A driver’s BAC level reveals whether they have reached the legal limit to drive, which is 0.08%.
Donovan Siers was arrested and charged with a DUI in 2008. Following the arrest, police asked Siers for a blood sample, which he refused. Siers alleges that police then restrained him in a chair and forcibly took a blood sample for BAC testing. According to the blood test, Siers’ BAC level was nearly three times the legal limit. He was subsequently charged and convicted for driving under the influence of alcohol. Siers has been serving time in prison since his trial, his third DUI related conviction. (more…)