Wednesday, May 06, 2009

NY, DWI, Ignition Interlock, and MADD

Great story on Capital News 9 last night. The NY State Assembly has a bill (A-7196) that would require ignition interlock devices for everyone convicted of DWI. Specifics from the bill are below.

In the News 9 story, Laura Dean-Mooney of MADD said: "If there are detectable levels of alcohol, their car simply will not start." So in other words, if you have any alcohol on your breath whatsoever, even if you're not impaired, your car will not start. Now some of you are thinking that this is only for people who have been convicted of DWI. Rest assured that MADD will not stop there. As Dean-Mooney put it:

This ... is a good start, but she hopes technology similar to the device could come to be ... in all cars ... that will ultimately eliminate drunk driving.

Let's be clear folks - MADD wants to put devices in your cars that will require you to blow into a device, and if it shows detectable levels of alcohol, your car won't start. Their goal is to do this for everyone.

Keep in mind that breath tests are unreliable. See my recent post on breath test videos. You won't be able to drive if you had a glass of wine with dinner. Cough syrup could be a problem. And if you had some bread, well your car still might not start.

But let's get to the substance of the bill. It would create a new Section 1198 of the Vehicle and Traffic Law (repealing the current version). First, it expands the ignition interlock program to DWAI. The current 1198 does not permit courts to impose the device on a DWAI offender. The new bill doesn't mandate ignition interlock for a DWAI offender, but it does make it an option for the judge (1198(2)(B)). It's not hard to imagine some prosecutors (cough ... Soares ... cough cough) requiring the device for any DWAI plea bargains.

For DWI, there is an interesting trade-off. 1198(2)(E) mandates a sentence of "conditional discharge" and probation for a first DWI offense, with the ignition interlock device a condition. Apparently this means you can't get jail time for a first DWI offense (currently up to a year under 1193), as a conditional discharge usually means no imprisonment. But you can still get 15 days on a DWAI.

The BAC involved determines how long you have to use the device per (E)(1). For BACs from 0.08 to 0.11, it would be three months; from .12 to .17 it's six months; and for .18 and up it's a year. The period starts when you first get a conditional or restored license to drive. It's not clear how this would apply to a "common law DWI" conviction under 1192(3) where there is no BAC.

For a second offense, under (E)(2), you don't get the discharge, and probation is mandatory with three years of the device, though here the three years seems to start at sentencing. For a third offense it's 5 years. For the 4th offense it's required for 10 years to life.

One interesting detail: With DWI it usually matters how long ago your previous conviction was, but not with this bill. If you had a DWI more than 10 years ago, a new offense is not treated as a second offense. But for purposes of the ignition interlock device it now will be.

The bill also adds a $50 surcharge to which will fund the ignition interlock program. I knew they'd find another way to raise taxes.

Oh, by the way, I've seen estimates that renting an ignition interlock device costs up to $100/month. The Sens-O-Lock is $95/month plus taxes and other costs if it's for less than a year. So add another $1200 to the cost of a DWI conviction.


Martin Kehoe said...

Another Problem with the Ignition Interlock Legislation in New York

Pending legislation in the New York State Senate and Assembly would load the already overworked county probation departments by saddling them with the burden of administering a complicated and unpopular program that is technology intensive.

By now we have all heard of the dreaded ignition interlock device. The sobering, high tech, equipment that is installed in an automobile and requires a “clean breath” sample before allowing the car to start. This was first made famous nationally in the movie “The Forty Year Old Virgin” and then, on the street, when Lindsay Lohan became the celebrity poster child for the device. This was followed by former Chicago Bears and Texas Longhorn running back Cedric Benson, who was ordered to install an ignition interlock device on his vehicle as a condition for bail.

Since November 2006 the technology has been endorsed by Mothers Against Drunk Driving (MADD) as part of their Campaign to Eliminate Drunk Driving. Regardless of your personal take, on balance, the statistics point to the efficacy of the technology and consistently demonstrate that recidivism is significantly reduced, at least while the offender has the device installed in their automobile (See, Roth, Richard; Voas, Robert; and, Marques, Paul, Interlocks for first offenders effective? Traffic Injury Prevention 2007; 8(4):346-52)

New York State has had an ignition interlock program on the books for over twenty years -- One of the first in the nation (California was first in 1986). In the beginning it was referred to as a “Pilot Program” and only involved 7 counties spread across the state. Other counties were empowered to order the installation of the device on an ad hoc basis. They rarely did so because the technology was emerging and the devices were full of bugs. Its use was discretionary with the sentencing Judge. By 2007 the bugs, for the most part, were identified and worked out. The law in New York State was expanded to encompass all the counties and its use is now mandatory in certain cases of “Aggravated Driving While Intoxicated” (BAC ,18 or greater) when probation is ordered and in cases where the offender has previously been convicted of an alcohol related crime within five years.

Currently there is legislation pending to make the use of an ignition interlock mandatory following any DWI conviction including first time offenses. (See, Senate Bill S-27A, January 7, 2009 and Assembly Bill A-07196, March 25, 2009). This program, if it becomes law, will follow several other states which have “first offender” programs: Notably, New Mexico and Arizona.

The impact on the offender will be tremendous. There is the obvious embarrassment of having to use the devise when ever you drive and the less obvious impact on other family members who want to drive (they two will have to blow-suck-blow into the contraption). But also, the cost is significant. Installation, monthly service, and removal fees easily exceed a thousand dollars a year. The minimum required installation will be one year for the first offender (and it could be a lifetime addition to the vehicle for the serial offender).

One aspect of the legislation that is particularly troubling is the fact that the program is to be administered by the county probation departments – not the New York State Department of Motor Vehicles. This has the potential for a real catastrophe in the implementation of the program. In fact, I predict that New York will actually have 50 different programs (one for each county). This will drive up costs, create an administrative nightmare and result in the inconsistent enforcement of the law across the state.

The service providers will surely have to get on a “list” for each county and the prices will vary considerably depending on where you reside in the state (A quick call to the probation departments in Albany and Suffolk counties (both original “Pilot Program” jurisdictions) will confirm this point). The variability may be caused because the less populated counties will present a disincentive to many service providers. More likely, it is because of the arbitrary rules that the county probation departments set for the vendors in doing business in that county. The problem is that the device is highly nuanced. Each manufacturer has devised their own subtle method for compliance with the broad federal specifications for device certification. Within those specifications there is ample opportunity for an administrator to prescribe custom requirements: time between random rolling retests; set-point to trigger a violation; the number of hours before the vehicle will “lock out”, to name a few.

Another reality is that the use and operation of the ignition interlock is inherently complicated. The device interfaces with, at least, the horn, lights, stereo and ignition of the automobile. The multitude of vehicles (1986 Oldsmobile, 2000 Mitsubishi and 2009 Ford Truck, for example) suggests innumerable potential problems with the wiring and maintenance of the interlock. Even if the manufacturers have ironed out the problems, I imagine it will require considerable resources to train and maintain personnel at the county level who will be able to sort out the far flung excuses and discern a device malfunction from a true violation. On top of these issues, each interlock vendor will have a proprietary interface for downloading data securely to the probation department. I suppose the counties could simply say: This is how we want the data reported, but this approach will only exacerbate the lack of true competition among certified vendors of the device. In most cases the manipulation of the secure data will require significant technical expertise.

The lawmakers should shift the burden to administering the program to the Department of Motor Vehicles. This is fiscally responsible because the State would enjoy economies of scale in the area of technological knowhow. One central team would become familiar with all of the reported bugs. Competition would increase among service providers who would answer to a central office with well publicized requirements to enter the market as opposed to arbitrary and divergent protocols emanating from 50 separate administrators. There would be uniformity in the assessment of violations and the needless debate about false positives from mouthwash and stale bread would cease. While I believe the law will increase the level of safety on the highways, I urge the lawmakers to shift the burden to administering the program to the Department of Motor Vehicles.

Anonymous said...

Just make sure you have a balloon filled up to help you start the ignition or even better a canister of compressed air.

Anonymous said...

A balloon or can of compressed air will not help in the least, and as of right now these devices are not passing muster in the way of legality.I know this because of a few reasons,but not because of being an offender.First I had to help my girlfriend move her sons car up the driveway one day, who has one installed , and even with complete sobriety it can be next to impossible to get the device to start on occasion.On the matter of the legality side because the program is so new there is a host of issues that support the unreliability of the device to always function properly.Thus creating false positives and situations that can be potentially dangerous for someone who has young children in the car and has to blow in the device while actually driving it.If it malfunctions it gives you on a short period to pull over before it shuts off and if its broken the children and driver could be stranded on a desolate road,or worse by causing an accident in rush hour traffic.

Anonymous said...

I have an issue with these. My daughter and her husband left for Colorado from New York on Sunday. He had a DUI and there is a box on their vehicle. Today is Wedsnesday and they should have been there. The box has malfunctioned 3 times. The first time in Iowa where it took 3 hours for a technician to come. Then in Nebraska where it took 4 hours for a technician. Now it has malfunctioned again and they were directed to get "towed" to a garage and have the mechanics call so they can receive instructions on how to bypass the box. They have a 4 month old baby and have spent countless hours stranded on 4 lanes. This box is only designed to make someone money and they should all be recalled until the technology is perfected. Morons.