New York’s “Leandra’s Law” was welcomed as another strike against drunken driving. But two years after state leaders mandated that anyone convicted of driving while intoxicated place an ignition interlock on their car, just three of every 10 people ordered to install one actually do so.
Some 23,000 people around the state, including 1,300 in Erie County and more than 200 in Niagara, have not installed the device despite a court order, according to state figures.
Convicted drivers are choosing to take their cars off the road, rather than pay the hundreds of dollars that an interlock costs for installation and monthly fees. By taking the car off the road, or transferring ownership to someone else, they also avoid the cost of maintaining a vehicle they might use rarely or not at all – depending on the status of their driver’s license.
Thousands of drivers figure they will go without a car for six months – the typical duration for a court-ordered interlock. Or they will go without a car for even a year – the typical duration for the court-ordered restriction on their driver’s license. Afterward, those drivers will apply again for a license without an interlock order.
To an extent, the law has served its purpose. Convicted drivers who do not install an interlock because they do not have a car are, in theory, off the road for six months to a year. Yet some of those same DWI convicts have been caught driving the interlock-free vehicle of an acquaintance.
During 2011 and the first nine months of this year, 53 drivers in Erie County have been charged with driving without an interlock, a misdemeanor that can bring up to a year in jail.
It’s happening all over the state.
In August 2011, Willard Martin of Niagara Falls, 39 at the time, was accused of driving without an interlock. “Just take me to jail. I’ve been drinking,” Martin reportedly blurted when stopped on an entrance ramp to the LaSalle Expressway in Niagara Falls.
Two months later, Michael J. Metro, then 54, drove a friend’s car into a building on Abbott Road in Orchard Park. Town police charged Metro with another DWI and said he was driving without a valid license or an interlock.
In May, a Depew woman, Antoinette Short, 43, was pulled over in Orchard Park with a blood-alcohol level of 0.34 percent and an open container of vodka. She was supposed to have been driving with an ignition interlock device.
In Saratoga County, a driver operating a vehicle without a court-ordered interlock led police on a 35-mile chase in which his auto hit a state police vehicle. In August, he was sentenced to a year in jail.
In August of last year, one year after the mandate took hold, authorities in Nassau County on Long Island spied on hundreds of convicted drivers who had assured judges that they would not operate an automobile. Twenty-two were charged with trying to bypass the device. Some were spotted driving to work, others driving to meet their probation officer. Nassau County officials repeated the exercise this past August and charged 25 more.
In Erie County, a probation officer acting on a tip staked out the house of an offender and watched him drive home in his girlfriend’s car, said Brian McLaughlin, the Erie County probation director. Kenneth Potter, 60, on probation for felony driving while intoxicated, was brought up on new charges in April and sentenced to state prison, McLaughlin said.
“When people come off a DWI, the tendency on some of their parts is to drink and drive again. That’s why we are out there constantly, driving by their house and Breathalyzing them and everything else,” he said.
One case, involving a driver who did have the device installed, shows how offenders can lean on friends to evade the interlock when they need to.
Nicholas A. Santaniello, 27, of West Seneca, had stopped at the installation shop to have his interlock go through its monthly “calibration” – when the device is tested and its data read to see if the driver had tried to start the car with alcohol in his system. But Santaniello drove up in a friend’s car, and the friend was driving the Santaniello auto, the one with the device, according to state police.
Troopers called to the scene in April reported that Santaniello couldn’t start his car because his interlock had detected alcohol. He was charged with driving without an interlock, and the friend was charged with facilitating him in doing so.
By March of this year, the trend had been well-charted by state officials in Albany. Nearly 70 percent of sentenced offenders “continue to transfer ownership or represent that they no longer have a vehicle to operate,” Robert M. Maccarone, director of the state Office of Probation and Correctional Alternatives, wrote in a letter to officials in each county. “Unfortunately,” he continued, “numerous studies indicate that many of these operators will continue to drive, despite the penalties.”
John F. Sullivan is project coordinator for the Erie County STOP DWI program, which monitors hundreds of drivers ordered to install an interlock.
“If they truly do not have a vehicle and are not driving, then we don’t have a problem,” Sullivan said.
But if they are driving another vehicle “then they are just breaking the law,” he said. “Drunk drivers are notoriously bad drivers anyway. Statistically they make a lot of driving mistakes. They should be picked up eventually.”
Some parents find peace of mind by voluntarily having an interlock installed on cars driven by teenagers and young adults in the family. In that vein, convicted drivers who accept the interlock can use it to develop good long-term habits, Sullivan said.
“I know it’s an intrusive thing. It takes about five or six minutes to start your car and get going,” Sullivan said. But with the device, drivers “learn to function on a daily basis, doing what they should be doing, without alcohol,” he added.
“They know if they consume it, they are not going to be able to go where they’ve got to go – to work, to pick up their kids or to do those sorts of things. So a six-month period of doing that can disrupt consumption patterns that get them in trouble. I’m not saying everybody that has a DWI has a substance-abuse problem,” he said. “But they have demonstrated that they have a problem monitoring consumption.”
Some have cameras
The interlock measures the driver’s breath for any sign of alcohol. A count as low as .025 – about a third of the amount that triggers a DWI charge – prevents the car from starting. Even after successfully starting the car, the device will later tell drivers to blow into the monitor again. The “rolling retests” protect against the operator who asks a sober friend to provide the breath that starts the auto. Now, interlocks with cameras are being employed more and more. Drivers are expected to visit their installation center each month so the data can be read and reported to the monitoring agency.
Erie County’s STOP DWI agency will not allow drivers to simply wait out, without a car, the six months in which they were to use an interlock. The agency withholds certification, to the state Department of Motor Vehicles, that the driver met the requirement, Sullivan said. But after a year, when the court’s “conditional discharge” expires, the driver is eligible for a certificate to remove the interlock restriction.
If convicted drivers with cars go six months with the device, they can get the restriction lifted sooner.
Leandra’s Law, officially known as the Child Passenger Protection Act, served two purposes when approved by the State Legislature in 2009. The law stiffened penalties against anyone accused of driving while intoxicated with a child under age 16 in the car, including elevating their DWI charge from a misdemeanor to a felony and, starting on Aug. 15, 2010, anyone convicted of even misdemeanor DWI would have to drive with the interlock device.
The law was passed after several high-profile accidents involving alcohol, including a crash that killed 11-year-old Leandra Rosado in Manhattan in 2009. She was killed when riding in an auto driven by the intoxicated mother of a friend. New York was the 12th state in the nation to enact the mandate, credited with slowing the number of repeat offenses. But other states, too, had seen a disconnect between the number of court orders to install a device and the number actually installed.
In Washington, just 16 percent of some 28,000 court orders had been fulfilled in roughly the first two years of that state’s mandate, according to a Seattle Times article in December 2006. Many people were just ignoring the order, and they faced a penalty only if caught driving without the device. But unlike in New York, Washington had no public agency assigned to confirm the installation.
New York’s percentage of compliance in the first two years, though a mere 30 percent, has been better than Washington’s. In New York, each county has an agency or two monitoring compliance, and they tell judges about drivers who refuse to go along, either because of defiance or indifference, and about drivers who have tried to start their car and failed.
About 10,000 drivers statewide have installed an interlock, more than four times the number who had installed one before the Leandra’s Law rule took hold.
But a judge cannot order someone to place an interlock in a car that does not exist.
“I can order them to put a device on a car they have access to, or they own, and I keep that order,” said Hamburg Town Justice Walter L. Rooth. “But if they don’t have a car, then it’s moot.”
Erie County’s STOP DWI agency has seen 47 percent of the drivers it monitors install the device, as ordered, though in the most recent three-month period the figure actually jumped 10 percentage points. Meanwhile, the Erie County Probation Department monitors more serious cases, those more likely to involve drivers subjected to mandatory license revocations and regular contact with a probation officer. Of those cases, roughly one out of every eight drivers – 12 percent – actually have the device installed as ordered.
When combining totals from both Erie County agencies, just one out of three drivers ordered to install an interlock did so between Aug. 15, 2010 and June 30 of this year. Erie County’s rate was similar to the statewide rate of three out of every 10. In Niagara County, 38 percent of the drivers have had the device installed as ordered, according to state figures.
“Whenever they pass a new bill or put something into law, there are always loopholes. We knew this was going to happen,” said Nicholas Fasciana of Interlock of Erie County, the county’s largest provider of interlock devices. “The numbers speak for themselves. It’s startling that so many people are actually convicted but yet so few get the actual interlock installed on their vehicle. It’s startling because these people are just driving other cars.”
Law is ‘cumbersome’
Lawyer Michael Taheri has defended many clients charged with drunken-driving offenses.
“As a cost-saving mechanism, if that client wants to take their car off the road, and if they are not eligible for a conditional license because of their prior history, it makes sense to take the car off the road. Don’t insure it. Sell it, and don’t incur the expense,’’ he said. “The intent of that legislation was for first-timers who got convicted of a misdemeanor to not only have access to their car but to not drink. I think the statute right now is still working its way through the system, and it’s cumbersome. All the courts aren’t on the same page.”
State lawmakers are considering ways to address the loophole. The Republican-controlled Senate this year approved a measure by the chairman of its Transportation Committee, Long Island Republican Charles J. Fuschillo Jr., to require, among other things, that offenders who do not install the interlock instead wear a “transdermal alcohol monitoring device,” such as an ankle bracelet, to reveal whether they have been drinking alcohol. Driver’s licenses would be reinstated only for offenders who have either worn the bracelet or driven with the interlock. The Democrat-controlled Assembly has not taken up the bill.
Meanwhile, Gov. Andrew M. Cuomo just weeks ago instructed the DMV to toughen rules against repeat drunken drivers. He wants the agency to review the lifetime record of a driver applying to have a license reinstated and to permanently revoke the license of persistently drunk and dangerous drivers.