Only Half of Interlock Devices Ordered After Leandra Law

[The following article features Tom Anelli, and is from the New York Law Journal]

By John Caher
New York Law Journal
August 24, 2011

Fewer than half of drunken drivers subject to New York’s year-old ignition interlock provision are actually installing the devices on their motor vehicles as defense attorneys advise clients to transfer title rather than pay the cost of installing and maintaining the equipment.

Interlocks were ordered in 8,967 cases but installed in only 3,971, or 44 percent, between Aug. 15, when the provision requiring judges to order anyone convicted of felony or misdemeanor drunken driving to install and maintain an interlock device in any vehicle they own or operate for six months took effect, and March 31, according to the state Division of Criminal Justice Services. More recent data is not available.

Peter Gerstenzang, a DWI defense expert in Albany who has been conducting training seminars on the interlock provision for judges, said the explanation is clear: He and other defense counsel are advising clients to get rid of their cars rather than pay the cost—roughly $100 to install and another $100 monthly—to maintain an interlock.

Mr. Gerstenzang said that since many drunken drivers are repeat offenders whose license has been revoked or suspended, there is no sense in installing an interlock on a vehicle they cannot drive, and no sense in letting a depreciating asset sit idle in the driveway.

“Lawyers, and I am among them, are advising clients to transfer title,” said Mr. Gerstenzang, of Gerstenzang, O’Hern, Hickey & Gerstenzang in Albany. “If you are a first-time offender and eligible for a conditional license, you get the interlock. But if you have prior convictions and are prohibited from driving, you are much better off selling the car. If it is a car you don’t want to permanently dispose of, your best bet is to transfer title to a friend or relative, and if you are on probation, do it with a friend or relative who doesn’t live with you. It is common sense.”

Another upstate attorney with a high-volume DWI practice, Thomas Anelli of Nave DWI Defense Attorneys in Syracuse, said that while he has never advised a client to transfer title to evade an interlock mandate, he agrees that strategy makes “perfect sense” if the offender’s license has been suspended or revoked.

“I have never run into anything that would suggest an intentional circumvention of the law by defense attorneys,” Mr. Anelli said. “On the other hand, if you can’t have a license for three to five years, why go through the expense of paying for an interlock if you can’t drive anyway?”

Mr. Anelli said many DWI offenders cannot afford to drive after a conviction with the resultant and often hefty increase in insurance premiums and now, the added expense of an interlock. He said he suspects that some offenders are transferring title of their car not so much to evade the interlock requirement, but to avoid the expense.

Senator Charles J. Fuschillo Jr., a Long Island Republican who was one of the sponsors of Leandra’s Law, which added the requirement, said it is “disturbing” that many motorists are apparently evading the interlock provision by transferring title and may never undergo the period of monitoring envisioned in the law.

“It certainly wasn’t the intent of the law to have defense attorneys advise clients on how to get around the law,” Mr. Fuschillo said. “We will, if necessary, provide corrective legislation.”

The senator said one potential remedy would be to require everyone convicted of a DWI offense to install and maintain an interlock whenever they resume driving. That way, offenders who have transferred title could delay, but not avoid, complying with the provision and enduring a period of close scrutiny when they again begin to drive.

Mr. Fuschillo also raised a question of who, if anyone, is checking to ensure that someone who claims to have sold or transferred his or her car has actually done so and is not driving another vehicle without an interlock.

Albany City Court Judge Thomas K. Keefe (See Profile) acknowledged that there has “been a certain back and forth” between the courts and monitoring agencies over how to ensure that offenders are not driving in violation of the interlock requirement.

Monitoring is usually handled by local probation departments but other agencies, such as a STOP-DWI office, handle compliance for offenders who are not on probation.

Judge Keefe said probation closely monitors individuals under supervision, but compliance enforcement is more difficult for those who are not on probation.

“The order says you must put an interlock on any car you own or operate,” Judge Keefe said. “If you transfer title and get behind the wheel of a car without an interlock, you are in violation of the order. But the question is: How does anyone enforce it?”

Driving a vehicle without an interlock after one has been ordered is a Class A misdemeanor, punishable by up to one year in jail.

With the device, the motorist must exhale into the instrument before starting the vehicle, which will not start if it detects a certain amount of alcohol. In addition, “rolling retests,” where the driver has to periodically blow into the device, are conducted at various intervals and if the motorist fails or skips the retest, the vehicle lights will turn on and off and the horn will begin blaring. A built-in computer records the sessions and that information is regularly downloaded and reported to the local probation department.

A sting earlier this month in Nassau County caught 22 offenders driving without an interlock—most of them while reporting to their probation officer, Nassau County District Attorney Kathleen Rice said in a press release Monday.

“Ignition interlocks protect innocent drivers and pedestrians by forcing drunk drivers to prove that they are sober when they get behind the wheel,” Ms. Rice said in the release. “These arrests should send a clear message that law enforcement is watching convicted drunk drivers closely, and this sting is just the beginning of a broader effort to ensure compliance with the ignition interlock law.”

Mr. Gerstenzang said that while he has experienced some glitches and unresolved issues and heard of others in his training sessions with judges—for example, is a farm tractor a motor vehicle requiring an interlock if driven for a short distance on a highway?— the provision seems to be effective.

“Compliance with the law does require that people respect the law,” Mr. Gerstenzang said. “Do people violate? Sure. Do people get caught? Absolutely. But I would say it is very effective in terms of accomplishing what it is trying to do.”

Child Protective Penalties

The ignition interlock provision was the second prong of the Child Passenger Protection Act of 2009, often call Leandra’s Law, which was enacted after an 11-year-old girl in Manhattan, Leandra Rosado, was killed on the Henry Hudson Parkway while riding in a vehicle with a drunken driver.

The first prong, which made it a felony to drive while intoxicated or impaired with a child under the age of 16 in the car, took effect in December 2009.

Under that provision everyone charged with the offense automatically has his or her license suspended pending prosecution; first-time offenders face a Class E felony and up to four years in prison and must install and maintain an interlock for at least six months; a Class B felony, punishable by up to 25 years in prison, may be charged if the child passenger of a drunken driver dies; a Class C felony, punishable by up to 15 years in state prison, may be charged if the child passenger of a drunken driver suffers a serious physical injury; parents, guardians and legal custodians who drive drunk with a child in the car must be reported to the Statewide Register of Child Abuse and Maltreatment.

Through July 22, 1,409 individuals had been charged with the new offense, with Suffolk and Erie counties reporting the most arrests, 133 and 114, respectively, according to the Division of Criminal Justice Services.

Of the 596 individuals statewide who have been sentenced for a Leandra Law violation, the bulk, 244 or 41 percent, were placed on probation. But nearly the same number, 242, did at least some time behind bars, and 40 went to state prison, according to the Division of Criminal Justice Services.

@|John Caher can be contacted at