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Second DWI in New York State

One DWI (driving while intoxicated) or DWAI (driving while ability impaired) conviction in New York state is tough enough: for DWI, a mandatory fine of $500 to $1,000, a six-month revocation of your license, and potentially up to a year in jail; for DWAI, a fine of $300 to $500, a six-month license suspension, and as many as 15 days in jail; not to mention the lawyers’ fees and disruption of your work and social life.

So what happens if you are charged with drunk driving again?

The first consideration is whether the new arrest would qualify as a second offense, which depends on how long it’s been since the first one. Generally speaking, New York’s “look-back” period for a DWI conviction, or a DWAI involving other drugs, is 10 years; for an alcohol-only DWAI, it is five years. (DWI is defined as driving with a blood alcohol content [BAC] of .08 or higher; DWAI is indicated by a BAC of .05 to .07, “or other evidence of impairment.”)

A second DWI within 10 years means you could be charged with a Class E felony, pay up to $5,000 in fines, have your license revoked for at least one year, and/or go to prison for up to four years. A second DWAI violation within five years could mean a fine of up to $750, 30 days in jail, and a six-month revocation of your license.

Factors that will increase the penalties include: having a blood alcohol content of .18 or higher (called aggravated DWI); having other intoxicating drugs in your system; and having a child of 15 years or younger in your car.

Whether or not a person pulled over on suspicion of DWI should refuse a chemical test depends on many factors, and before making this decision, a person should contact a lawyer for advice.

Not all of the DWI and DWAI penalties described here are set in stone. A DWI attorney can help you navigate through some of your options: pleading guilty to a lesser charge; accepting probation and/or a treatment program; or litigating the case by conducting hearings and going to trial. Your attorney also can advise you on whether your county has a felony diversion program, the goal of which is to get people with a history of drunk driving into treatment in exchange for a lighter sentence.

If you have been charged with DWI or DWAI, whether for a first or a repeat offense, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.

Injured at the Amusement Park? What are Your Rights?

It was every amusement-park visitor’s nightmare: In June, at Six Flags Great Escape in Queensbury, a 14-year-old Delaware girl somehow slipped out of her seat on a gondola ride, dangling 25 feet above the ground as onlookers rushed over. Fortunately, disaster was averted as a local man and his daughter positioned themselves under the girl, broke her fall, and prevented a more serious injury or death.

How safe are amusement-park rides, anyway? The International Association of Amusement Parks and Attractions, which represents fixed-site parks such as Disney World and the Six Flags franchise, says the 335 million United States patrons who visit the parks each year take 1.6 billion rides, and that the likelihood of serious injury is minuscule 1 in 6 million.


Photo by: Josh Grenier

But the IAAPA also lobbies heavily against any attempt by lawmakers to reintroduce federal oversight to parks like Six Flags. Instead, the industry is regulated by a patchwork of state and local oversight, with no federal guidelines or inspections since Congress removed fixed-site parks from its realm in the early eighties. And lawsuits stemming from accidents typically end in confidential settlements, with no admission of wrongdoing by the park, leaving the details of safety lapses shrouded in secrecy.

A handful of states don’t regulate amusement parks at all; in New York State, the Department of Labor conducts annual and/or pre-event inspections of all amusement-park devices at both fixed-site parks and temporary attractions like county fairs.

In past lawsuits involving amusement-park accidents, many courts—but not all—have held that amusement park owners must exercise ordinary or reasonable care in the construction, maintenance, and operation of their premises to protect tourists from injury. In this regard, they are held to a standard similar to the owners of common transportation devices such as buses and elevators. Grounds for a successful lawsuit against the park typically involve one or more of several types of negligence (failure to maintain the property, failure to inspect and replace faulty equipment, failure to post clear instructions and warnings, insufficient training of ride operators, etc.). Victims may also file a product-liability claim against the manufacturer of the equipment, if, say, a structural defect caused an accident or a restraining bar became unlatched during a ride.

However, some courts recognize that people who use amusement rides have different expectations than people simply boarding a bus for transportation; specifically, that they are expecting entertainment in the form of high speeds, steep drops, and tight turns. And on occasion, courts may find that the injured tourist assumed the risk of injury by ignoring warning signs and safety instructions.

If you are planning to visit an amusement park this summer, you are encouraged to follow these recommendations to make your day of enjoying the rides as fun and safe as possible:

  • Read and follow all instructions and warnings
  • Keep your hands and feet inside the ride while it is moving
  • Don’t reach toward fences and barriers
  • Secure loose clothing and long hair
  • Don’t drink or use drugs while riding
  • Don’t stand or attempt to leave a ride until it comes to a complete stop
  • Make sure restraining devices are properly latched, and don’t unlatch or loosen until instructed by the operator.

If you or a family member has suffered an injury at an amusement park, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.

New York Expands Records Sealing Law

 

Thanks to a new provision included in the New York State budget that was passed on April 12, and signed into law by Governor Andrew Cuomo, tens of thousands of New Yorkers will be eligible for relief from the lifelong stigma of a criminal record, allowing them to have a broad range of eligible convictions—misdemeanor and felony—sealed from public view after a ten-year waiting period running from the date of conviction or release from prison.

The new statutory provision (§ 160.59) added to New York’s Criminal Procedure Law gives courts the discretion to seal up to two convictions per person (only one of which may be a felony), for all crimes other than sex offenses and class A and violent felonies.

The sealed records will remain available to law enforcement and some licensing agencies, but will be unavailable to the public and will not appear in any civil background check.new york records sealing law

The new law will take effect on September 27, 2017. Eligible individuals may apply to have up to two convictions sealed to the court where the conviction for the most serious offense occurred (or to the court of the most recent conviction if both offenses are of the same class). The district attorney or case prosecutor will have the opportunity to object, and the court retains the right to grant or deny any request.

In order to be eligible, you must not have any pending charges or have received any other criminal convictions within the ten-year period. In contemplating whether to grant an application to seal, courts will consider the amount of time between offenses; the applicant’s character and rehabilitation efforts, such as treatment programs, work, school, or volunteer work; and the impact the sealing would have on the applicant’s rehabilitation and reentry into society.

If you have a criminal record and think you might qualify for record sealing under New York’s new law, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.

Traveling this Summer? Know the Legal Requirements for Transporting Firearms

Millions of people will be traveling at some point this summer, whether by air, rail or automobile. As you are busy packing you’re probably thinking about your clothes, shoes and sunscreen. If you are one of the estimated 10% of New Yorkers who own a gun,[1] you may also be planning to travel with your weapon.

New York state law requires a license to purchase and carry a handgun, with different types of licenses granting specific permissions regarding where and how you can possess the weapon. (A license is not required—except in New York City— to purchase or possess rifles or shotguns.) While you exercise your Second Amendment right to bear arms, keep in mind the rules about how to safely and legally travel with your firearm.

Criminal possession of a weapon is a serious offense, so make sure you are informed. There are many complexities in the law regarding the possession of firearms and other weapons, covered under New York Penal Law §265 but this brief overview can help you understand some key aspects and provide links for more information.

Traveling by Air

Federal law prohibits firearms from carry-on luggage aboard an aircraft. The Transportation Security Administration (TSA) provides guidance on what you can and cannot bring onboard, including the following:

  • Firearms must be unloaded and locked in a hard-sided container and transported as checked baggage only. Only the passenger should retain the key or combination to the lock.
  • The container must completely secure the firearm from being accessed. Locked cases that can be easily opened are not permitted.
  • Declare each firearm each time you present it for transport as checked baggage. Ask your airline about limitations or fees that may apply.
  • Rifle scopes are permitted in carry-on and checked baggage.
  • Ammunition is prohibited in carry-on baggage, but may be transported in checked baggage, and certain stipulations apply.
  • Specific guidelines exist for law enforcement officers flying armed.
  • You can contact TSA for more information, including sending them a question via social media to Facebook Messenger or Twitter.

Traveling by Rail

Amtrak allows firearms—including handguns, rifles and shotguns—on its trains, with certain restrictions.

Amtrak requires that any passenger checking firearms or ammunition provide notification no later than 24 hours before the train departs. Notification cannot be made online; individuals must call 800-USA-RAIL.

Be aware that if you are bringing firearms aboard, you’ll need to check them at least 30 minutes prior to departure, so plan accordingly.

Firearms must be unloaded and locked in an approved hard-sided container, for which there are specific size and weight restrictions. The traveler must have sole possession of the key or lock combination. In the case of a small container, it must be stored securely in a suitcase or other checked bag, but still needs to be declared.

Visit Amtrak  for more details and requirements about traveling with firearms.

Traveling by Automobile

In general, your license to carry a firearm is effective across New York state, meaning you can travel throughout the state legally, except for New York City, which requires specific permissions. There are other locations within the state where possession is prohibited or restricted. For example, firearms are only allowed on public campgrounds during the spring and fall hunting seasons, and are generally prohibited on Adirondack Mountain Reserve foot trails.

If you plan to travel outside of the state, the rules regarding interstate travel by vehicle with a firearm are governed by federal law [2], which states the following:

Notwithstanding any state or local law, a person shall be entitled to transport a firearm from any place where he may lawfully possess and transport such firearm to any other place where he may lawfully possess and transport such firearm if the firearm is unloaded and in the trunk. In vehicles without a trunk, the unloaded firearm shall be in a locked container other than the glove compartment or console.

Note that there are some states that do not recognize a New York state firearm license. You should contact the office of the attorney general in the state(s) to which you will be traveling for details about the legal requirements.

Before you travel this summer, make sure you are informed about the firearms regulations in the jurisdictions you’ll be visiting to avoid violating any laws. If you have been charged with a firearms offense, we can help. At LaMarche Safranko Law we are completely versed in the defense of criminal firearms offenses and are committed to providing you with a full explanation of your options. Contact us for a free consultation at (518) 982-0770 or online.

[1] http://injuryprevention.bmj.com/content/injuryprev/early/2015/06/09/injuryprev-2015-041586.full.pdf?keytype=ref&ijkey=doj6vx0laFZMsQ2
[2]  United States Code Title 18 – Part I – Chapter 44 §926A

 

Motorcycle Accidents: Prevention and Response

If you are one of the more than 240,000 motorcyclists in New York, you are no doubt taking advantage of the longer days and (hopefully soon) warmer weather to get out for a ride. Maybe you’ll be heading to the Adirondacks this weekend for the 35th annual Americade in Lake George, or the 16th annual Warrensburg Bike Rally.

Regardless of where your bike takes you this summer, safety is always the top priority. Riding a motorcycle is riskier than driving a car, and the likelihood of injury in a motorcycle accident is greater than in a vehicle crash.

Stay vigilant and take some key precautions to minimize the chance of becoming an accident statistic.

 

Don’t drink and ride!

Driving any motorized vehicle under the influence is dangerous, but even more so on a motorcycle. Your balance, sensory perception and reflexes are affected when you are under the influence, leaving you more vulnerable to a crash. And if you do crash, it’s likely to be serious. Almost one-third of motorcyclists involved in fatal crashes in 2015 were legally drunk, with a blood alcohol concentration of .08% or higher, according to the National Highway Traffic Safety Administration (NHTSA).

Always wear your helmet.

Both motorcycle drivers and passengers are required by New York state law to wear a federally rated helmet and protective eyewear. According to the NHTSA, head injury is the leading cause of death in motorcycle accidents. Wearing a helmet can save your life and minimize brain damage, with the NHTSA estimating that helmets are 67% effective in preventing brain injuries in a crash. Visit the www.helmetcheck.org  site to see if your helmet meets safety standards.

Drive defensively.

Seemingly minor road hazards such as potholes, uneven lanes and wet roads are not necessarily significant risk factors in a car, but on a motorcycle, they can become deadly. Two wheels are not as stable as four, so you need to be aware of the conditions at all times. Anticipate potential hazards—whether road related or due to other motorists around you—and be ready to take defensive measures.  Check out the NYS Motorcycle Safety Program, administered by the NYS Department of Motor Vehicles, for information about safety courses you can take to brush up on your skills.

While prevention is always the goal, it is not always possible. Let’s look at some key actions you should take if you’ve been in a motorcycle accident.

  • If you are blocking the roadway, and can safely move off the side, do so.
  • In general, it’s best not to remove your helmet, or that of your passenger, since you don’t know the extent of any potential injuries.
  • Call 911. Provide statements only to law enforcement officers on the scene. If another driver is involved in the accident, do not provide any statements to their insurance company, or admit fault.
  • Take pictures of the accident scene and any damage or ask someone to do it for you and record as much detail as possible.
  • Contact your insurance company as soon as possible. There may be time limits regarding filing claims.
  • Contact an experienced personal injury attorney familiar with motorcycle accident cases. New York’s No-Fault insurance does not apply to accidents involving motorcycles, so serious injury is not required to bring a lawsuit. Your attorney can guide you through the process, including commencing any potential legal action, or defending your rights if you are being charged in the accident.

At LaMarche Safranko Law, we appreciate the dangers that motorcyclists face while enjoying their passion and we advocate for those who are injured by other drivers. If you have been seriously injured in a motorcycle crash, contact us for a free consultation at (518) 982-0770 or online.

DMV warns of email traffic ticket scam

The NYS Department of Motor Vehicles issued a notice today warning consumers against an email “phishing” campaign that sends a notice to email users stating they must pay a ticket within 48 hours or their license will be revoked. While the notice is made to appear as if it comes from DMV, it is a hoax.

The fake email provides two links to either plead guilty or to refute the tickets. The links direct unsuspecting users to a malicious download that may expose your computer to a virus. 

If you receive one of these emails, delete the email immediately. Do not click on any links in the email and do not forward the email. 

 

LaMarche Safranko Law PLLC