Misinformation about DWI: Posters and BAC Calculators

I was in a local court last night and saw this poster, which is misleading about NY's DWI laws.

The poster is also available online as a pdf: Leandra's Law Poster

Here's the relevant quote:

... anyone in New York State convicted of drunken driving (even first-time offenders) will be required to install at their own expense an ignition interlock device on any vehicle they operate.

First, the use of "drunken driving" is imprecise, and is not the one used in the law. The main offense, DWI, means "driving while intoxicated." It is true that convictions for DWI (or the higher BAC offense of Aggravated DWI) now require the ignition interlock device.

But there is also a lesser offense called DWAI, for "driving while ability impaired by alcohol". Many people think of this offense as also being a form of "drunken driving." The device is not required by law for DWAI (though judges may require it). Notice that at the bottom of the poster, it uses the web address: www.safeny.com/IMPAIRED.

There is also a DWAI Drugs offense where the driver is accused of being impaired by drugs, rather than alcohol. Since it is part of the same statute as regular DWI (VTL 1192) some people think of this offense as a form of drunken driving. The ignition interlock device is not required for DWAI Drugs either.

Another problem is the "on any vehicle they operate" language. In at least some early versions of how this law was supposed to be applied, it covered any vehicle the offender has access to, such as a spouse's car, or perhaps a car owned by a child who lives in the home. From what I'm hearing, this is still unsettled and could be very problematic.

My biggest beef with DWI misinformation is the BAC calculators promoted by the government. Here's the Erie County Stop DWI calculator. I put in 3 beers for a male weight 200 pounds over 3 hours, and it shows a BAC of 0.02.


With 6 drinks over 5 hours, it shows 0.05 - legal in NY.

Then it says In New York State you would be arrested for 'Driving While Ability Impaired (DWAI)'. That's a bit inaccurate. First, they don't do the supposedly reliable test of your BAC until after you've been arrested. Second, while you might well be charged with DWAI for a BAC of 0.05, most defense lawyers would get that dismissed pretty quickly. A BAC of 0.05 is legal in New York State - see my 2009 blog post on DWI, DWAI, Aggravated DWI and Plea Bargaining.

Here's what a smart calculator would say:
If you've had one drink in the past 8 hours, and you get pulled over, you are at high risk for being arrested for DWI. You are also at high risk of an erroneous breath test showing you to have a high BAC, and then being charged with a DWI offense.

It is misleading to tell someone they can have 5 drinks over 5 hours and they're okay to drive. The calculators also fail to deal with physiological reasons why alcohol might not hit your system for a period of time, throwing off the calculation.

The poster is also a great example of how ineffective government is at communicating with people. I work in this field and this is the first time I've seen the poster. I was unaware of the website. The vast majority of NY residents (not to mention drivers from other states) are far less likely than me to have seen this. Makes you wonder how much money they wasted on the poster and website.

SEO for Lawyers?

As an attorney with a website, I get deluged with "experts" who want to help me with my SEO - search engine optimization. Here's excerpts from an e-mail I got today (in italics), with my comments (in regular font):

Hi Warren. I called your office today after seeing your PPC ad on the internet.

We did not get a call. For those who don't know, PPC means Pay-Per-Click - usually ads on Google.

We ... put your practice ahead of your competition ... for just about any way someone can type in a search for your practice areas. Our clients are found organically hundreds of ways right out of the gate. Eventually most are found over a thousand different ways.

I edited out some of the gobbledygook and it still looks like gobbledygook.

Two major things set us apart from any SEO or advertising company with which you’ve spoken or worked. For starters, we only work with a few lawyers per market for particular practice areas.

So you only work with a couple of my competitors? Wonderful.

Second, we have the only automated SEO content manager in the world. When Google makes a change to its rules, we update our content manager and all our clients (we have about 1,300 nationwide) are updated simultaneously.

In other words, they spam Google efficiently.

Please call when you have a few minutes and we’ll see if we are a good fit.

I was going to reply but hit the spam button instead. Here's what I was going to say:

"You have a page titled Search Engine Optimization For Law Firms, so I searched for that phrase. Your website wasn't on the first page. It wasn't on the second page. If you're so good at SEO, you would be on the first page."

Sometimes the e-mail solicitation will say something like: You don't rank on the first page for "new york city personal injury lawyer". Yeah, but I'm not in New York City. I wish these jerks would actually research us before they spam us. But that's life on the internet.

There are some excellent people out there doing SEO work, for lawyers and for other businesses. They don't get their clients through spam e-mails. If you want someone to help you with your SEO, do a search for SEO along with a relevant phrase based on topic ("for lawyers") or geography ("albany ny") or both. Whoever ranks high is probably good at it.

Involuntary Commitment vs. Arrest: NY Mental Hygiene Law Article 9

I was stunned by a recent experience with the involuntary commitment process. No, for those who think I'm crazy, I was not the one committed. I got a call from a close friend who had been taken to an emergency room against his will.

As Wikipedia puts it: "Involuntary commitment is the practice of placing a person to [sic] a psychiatric hospital or ward against his or her will ...."

My friend had been communicating with a mental health professional. He mentioned suicide, but had never harmed himself, made no mention of a plan, and closed the message with: "But I have to go to work. I'll call you later." Hardly seems like an emergency to me though of course I'm no expert.

Pursuant to NY Mental Hygiene Law § 9.27, an ambulance appeared at his home and took him to an emergency room. His room was strikingly uncomfortable due to the removal of any object he might use to kill himself. While there he was lied to repeatedly by the staff. They lied to me too. They threatened him, and me. They intimidated him and discouraged him from exercising his right to a hearing. They disregarded the laws requiring them to give him proper notice of his rights.

In other words, it was a lot like a criminal prosecution.

From a defense lawyer's perspective, some contrasts between arrest and involuntary commitment stood out to me.

If you're suspected of murdering someone, the police are not supposed to arrest you unless they have probable cause. If, on the other hand, someone thinks you might be a risk of serious harm to yourself, the standard is lower. In fact, it's not even clear what the standard is.

If you are arrested, the police are required to bring you before a "neutral magistrate" (a judge usually) within 24 hours, whether or not you request to see a judge. If you are subjected to involuntary commitment, there's a variety of time periods that might apply if you request a hearing. If you don't request a hearing, it could be a long time. For example, under § 9.39 they can hold you for up to 48 hours on an emergency admission. Then, if they decide to keep holding you, you can request a hearing - in writing - and the hearing should be held within five days. So that's a total of seven days. And again, in a criminal case they have to give you a hearing. It doesn't matter if you ask for it.

Everyone has heard of the Miranda warning. When arrested, you have the right to remain silent. Anything you say can be used against you in a court of law, but your silence cannot be used against you. The police are also required to give you that warning, and they're further required to make an effort to make sure you understand it. If they fail to warn you properly, any subsequent evidence obtained from you cannot be used against you and you might have a civil rights lawsuit (though it's usually not worth anything).

If you are committed against your will, you do not get read a Miranda warning and you do not have the same right to remain silent. The hospital is required to provide you with written notice of your rights and to post them conspicuously. In practice if they do so the notice is buried among other papers and there is no requirement that they make sure you understand your rights. If you choose to remain silent, your silence will be deemed a lack of cooperation with their evaluation and treatment, and will be used against you in any hearing. My friend did not receive any written notice. When I visited the rights were not posted anywhere I'd call conspicuous - I couldn't find them and I looked for them. There were places where things were posted conspicuously and the relevant rights were not there.

If you are arrested you have the right to an attorney. If you can't afford an attorney, one will be provided for you. You are notified of this as part of the Miranda warning. Once you request an attorney, they can't question you without your attorney present.

In involuntary commitment, there is no clear right to an attorney. There are some requirements that the Mental Hygiene Legal Service be notified and they will serve, in a sense, as your public defender. In practice you don't get to see them for a while.

I tried to assist my friend. Hospital staff limited my access to him. They refused to allow me to be present while he was questioned.

When my friend submitted his written request for a hearing, one of the hospital psychiatrists got right in his face and yelled at him. This treatment was not therapeutic.

I fully appreciate the feeling many have that we need to protect those with mental health problems, even from themselves. Similarly, there is a demand to protect the rest of us from them. William Galston argues that in The New Republic, arguing: the law should no longer require, as a condition of involuntary incarceration, that seriously disturbed individuals constitute a danger to themselves or others, let alone a “substantial” or “imminent” danger, as many states do.

Apparently Mr. Galston feels the laws are too lenient on those with mental health problems. The problem with his logic, as with many who cry out for tougher crime laws, is that it ignores the rights of the innocent. My friend was not a danger to anyone. Yes he has a mental health problem. But the hard truth is that mental health problems are commonplace. Galston's approach would take us down a very slippery slope.

We are already too far down that path. It is idiotic that those suspected of being a danger to themselves have less rights than those suspected of actually harming others. Yes it is important to make an effort to protect people with dangerous mental health problems. But it is more important that we ensure this is not abused. Anyone subject to involuntary commitment should have at least the same rights as an arrestee.

And thanks to Winston's comment on facebook, there's another point. When the mental health professional pulls the involuntary commitment trigger, it inherently damages the relationship. That may be necessary at times. But if the process thereafter is unfair, it further damages the relationship between the patient and the entire mental health profession. Future care for this person will be far more difficult.