Leandra's Law

BATAVIA, NY -- On the first Leandra's Law interlock-device case to go through Genesee County Court, there were some bugs in the bureaucracy to be worked out.

First, the case of Joshua P. Garcia was delayed from the morning to the afternoon so State Probation form DPCA-520 BAL-IID could be filled out. That form is titled "Vehicle Operation and Access By Others," and contains a description of the vehicles a person convicted of DWI could drive.

Garcia, an Erie County resident charged with DWI on Dec. 20, filled out the form originally with two vehicles, but then decided to turn in the plates on one and it was scratched from the form. 

Even so, the county has its own form, and it asked for two pieces of information not on the state form -- vehicle color and the license plate number. Since that form surfaced in court this afternoon, a deputy had to call dispatch and read the VIN number off the DPCA-520 BAL-IID form to a dispatcher and get the plate number.

Then, Garcia's attorney, Jerry Ader, petitioned the court for a hardship waiver so his client wouldn't have to pay for the interlock device. That form had to be filled out in triplicate and handed to the court at the time of sentencing, even though Judge Robert C. Noonan would be ruling on the matter in the same hearing.

In the end, Noonan found that Garcia's $25,000 annual salary was sufficient to pay for the device -- even with the fines for this DWI, a recent DWI conviction in Erie County plus probation fees there. The judge sentenced Garcia to five years probation and 90 days intermittent incarceration.

Noonan said he didn't find Garcia "indigent enough" to waive the interlock-device fees, which judges can do under terms of Leandra's Law.

Garcia, a stepson of Joseph Benaquist, the Pembroke resident murdered by Scott Doll in February, 2009, said he has been through a lot recently and turned to drinking because of the stress.

"Now I see that alcohol has brought problems into my life," Garcia said. "I’m done with alcohol."

Under sentencing guidelines, Noonan had few options, but said, "I have enough faith in you to give you a try on probation."

Ader asked that the interlock-device requirement be delayed until Garcia is eligible for a conditional driver's license.

According to his reading of the law, Ader said, he believed Noonan had the discretion to set a later date for installation.

"It makes no sense when my client does not have license," Ader said. "If he gets behind the wheel of a car while on probation, he’s committing a felony."

But the law also requires the device be installed within 10 days of sentencing, which is what Noonan required.

A 23-year-old woman from Alden was charged with DWI and a felony under "Leandra's Law" after reportedly being involved in a two-car accident in Darien on Thursday evening.

Haley A. Heidebreicht, of Seabrook Drive, Alden, allegedly had a BAC of .08 or greater. And she allegedly had a 5-month-old girl in the 2000 Dodge SUV she was driving.

Heidebreicht was driving westbound on Sumner Road when another driver reportedly failed to yield at the intersection with Colby Road.

Three people were hurt in the accident, including the 5-month-old, who was transported to Children's Hospital by ground ambulance. The driver and passenger in the other vehicle also suffered minor injuries and were taken to UMMC.

The other driver, Margaret M. Bliemeister, 46, of Townline Road, Alden, was issued a citation.

Her passenger was 16-year-old Edwin T. Bliemeister, also of Alden.

Under provisions of Leandra's Law, when a person is convicted of DWI, and he can't afford to install an ingition-locking device, the manufacturer will be required to front the cost.

That's a problem according to Scot Lewton, owner of Owner of Consumer Safety Technology, maker of Intoxalock.

When DWI convicts don't have "skin in the game," meaning a financial investment, Lewton said, they won't take the program as seriously.

"When it’s totally free, we tend to have more abuses," Lewton said. "We tend to see  abuse of the equipment. We have a tendency to not get the equipment back. Without having some skin in the game, indigency can be the Achilles' Heel to a program."

He pointed out that the ignition-control program in New Mexico is failing, where the indigency rate is 40 percent of all convicted DWI subjects.

Lewton is in town for a couple of meetings in Batavia. The first was today. Lewton met with 13 Western New York probation directors to go over how Intoxalock works. The second is tomorrow with members of the Genesee County Legislature.

We happened to find Lewton at Bill's Auto on Evans Street today, and he displayed a sample of his company's device and talked a little about the new Leandra's Law provisions.

He was mildly critical of the law for not taking into account all of the impacts of such broad legislation.

"I think the law has merit," Lewton said. "I think it probably needs to be better defined, both for the monitoring side as well as for the manufacturing side. But the law is in place and it can be adjusted over time and I’m sure it will improve."

Some estimates say that over the next year, 25,000 more New Yorkers will be required to install ignition-control devices.

Lewton doesn't believe the rate will be that high.

He said there is a big difference between conviction and participation.

He expects the participation rate to be about 30 to 40 percent of all DWI convictions.

Some people won't participate because they choose not to drive, and many others will simply ignore the law and choose to drive illegally. Another group will find relatives not living them and switch their car registration and deny to judges they even have a registered vehicle.

With such low participation rates and four or five more companies supplying the devices in New York, Lewton doesn't anticipate his company having any trouble keeping up with demand.

Soon, Lewton said, his company will release the next generation of Intoxalock, which will include options for GPS and video.

When the interlock-device provision of Leandra's Law is implemented on Aug. 15, there may be only one local auto-service shop certified to install the devices on the cars of convicted drunken drivers.

Bill's Auto at 101 Evans St., Batavia, is an authorized service agent for Des Moines, Iowa-based Intoxalock, one of six manufacturers certified by New York to sell the devices under court-mandated penalties for DWI. So far, no other Genesee County repair shop has apparently become certified to install interlock devices for any of the other manufacturers.

Business might be booming soon for Bill Ruffino -- with an estimated 300 to 400 cars in Genesee County required to get the device in the next year -- but Ruffino isn't sure that's a good thing.

Devices must be installed on every car a convicted drunken driver might drive. Once installed, a monthly inspection is required for each device, so for some drivers that might mean multiple trips to Bill's Auto.

Ruffino also figures that some people will be just flat embarrassed that they were convicted of DWI.

At the end of the day, some convicted drunken drivers may not have a warm-and-fuzzy feeling about Bill's Auto after going through the process.

"They’re not going to be happy people coming in here if they have to have it on multiple vehicles and get it inspected," Ruffino said. "It’s going to be a hassle. I’m not sure how happy they are going to be to see me."

Leandra's Law was passed in November in a rush following the death of Leandra Rosado, an 11-year-old passenger in the car of an allegedly driven drunken driver. It stipulates that interlock devices be required for six-months or longer on the cars owned or operated by convicted drunken drivers.

Ruffino said he isn't sure how it's all going to work -- the state has yet to produce guidelines, but he does know his shop is going to be doing a lot more installations and monthly inspections.

Yes, monthly inspections. Each car with the device will be required to roll into the shop for a visual inspection, and a piece of the device that contains a data chip will be taken out, put in a box and mailed to the manufacturer. Then technicians there download the data and provide it to Genesee County officials.

Currently, Bill's Auto has only two clients with interlock devices installed, so he said he really isn't clear how his shop, the county and state will work together on the new program.

"I never actually spoke with the county when I signed up for this," Ruffino said. "It was just a rep from the manufacturer itself who got a hold of me and asked me to do it, but until this came through, I’d never spoken with anybody (from the county) about it."

Earlier this week, Genesee County officials raised concerns about the lack of details from the state on how the new program will work and who will pay for administration of the program, but a spokesman for Intoxalock said many of the county concerns are already taken care of by state law.

For example, county taxpayers will not be burdened with the cost of the devices for so-called indigent convicts.

Brad Fralick, director of government relations for Intoxalock, said that New York already requires manufactures to cover devices for convicted drunken drivers who can't afford the devices. 

While the state is working out a scheme for an assessment to be charged to convicts who can afford the devices, that sort of arrangement isn't unusual. Fralick said in other states, such assessments are used either to pay for device installations, or for administrative costs.

A press release on the Intoxalock website says that interlock devices reduce repeat offenses by 64 percent.

Even though New York's installations are expected to jump from 2,500 to 25,000 under Leandra's Law, Fralick said his company is prepared -- already ramping up production -- to handle the increased business.

The cost for a convicted drunken driver, will exceed $1,000. On each car, the convict will be required to pay $65 per month, plus $19 to Bill's Auto for monthly inspections, and $112 for the initial installations and $40 to have it removed once the monitoring period is over.

Fralick pointed out that the cost is a lot less than the $10,000 to $15,000 a second DWI conviction would cost the driver.

Fralick doesn't expect county taxpayers to take on the cost of installation and monitoring of the devices. He said it's already New York law that the manufacturers provide the devices for drivers who can't provide them. And negotiations are under way to create an assessment on those drivers who can afford the devices, to pay for those who can't.

In all, 47 states have some type of law requiring interlock devices, Fralick said.

In related news, the county's Ways and Means Committee passed a draft resolution Wednesday asking the State Legislature to amend Leandra's Law to give local court judges discretion on whether a convicted drunken driver would be required to install interlock devices.

Genesee County's two elected state legislators applaud the get-tough-on-drunken-driving provisions in Leandra's Law, even while saying they need to work toward making the new law less burdensome on local government.

While county officials raised a number of objections to a provision of the law that will require all drivers convicted of DWI to install an ignition interlock device, both Sen. Mike Ranzenhofer and Assemblyman Steve Hawley said that was an aspect of the new law they fully supported.

Razenhofer pointed to the county probation's chief, Julie Smith, who said interlock devices are effective at stopping drunk drivers from getting behind the wheel.

"I knew it (the provision) was in there and I thought it was a good idea," said Ranzenhofer. "It's supposed to be a deterrent to keep drunks off the road. The point is to keep the person off the road so he doesn't kill, maim or harm other individuals."

Hawley said if people are going to drink and drive, when they're convicted, the need to "pay the price."

"The alternative," he said, "is to go to jail, and that is an alternative."

Both Ranzenhofer and Hawley said they are talking with Genesee County officials and trying to find ways to address their concerns, but Hawley also said of all the counties he represents, only Genesee is raising vocal objections. The other counties, he said, indicated they can find a way to accommodate the provisions of the law.

Hawley said he wants to see if it's possible to delay implimenation so counties with concerns can find ways to get them addressed.

Neither Hawley nor Ranzenhofer expressed a lot of sympathy for the spouse of a person convicted of DWI who might also be required to start blowing into a tube to start his or her car.

"My sympathies lie with the victims, the people who are hurt or killed by drunken drivers," Ranzenhofer said.

As for the cost, Hawley said the county shouldn't pay for these devices if someone convicted of DWI can't afford it.

"If they can afford the alcohol, and they can afford the insurance, and they can afford the car, then they can certainly afford the device," Hawley said. "If not, they have to get rid of their cars."

Starting in August, any driver convicted in New York of driving drunk will have to install a device that prevents the car from starting if he or she can't pass a breathalyzer test.

The new requirement was apparently a provision in Leandra’s Law, the legislation passed and signed into law last fall in less than 30 days following the death of a young girl who was a passenger in a car driven by a drunken driver.

Not only will the device be required in the primary car of the convicted drunken driver, but also any car that the driver might even occasionally drive, or have access to drive (work vehicles are exempted).

That means, husband gets convicted of DWI, both his wife's car and his teenage daughter still living at home will need to have the devices installed. The interlock-ignition device is designed to prevent a car from starting if the driver blows a .02 or higher. It will also randomly require a driver to blow in the device as the person is driving to help ensure a friend didn't blow in it to get the car started initially (example photo here).

"Since when do we start punishing innocent people?" said Assistant County Manager Frank V. Ciaccia during the Monday meeting of the Public Safety Committee. "These are people who weren’t convicted of anything. Now every morning they get in a vehicle they’ve got to blow into this thing to get the car to start?"

County officials are most concerned about the additional costs associated with the legislation, which could reach into the hundreds of thousands of dollars.

There are some 360 DWI convictions in Genesee County each year, according to County Manager Jay Gsell. Only about 40 percent of those drivers convicted are placed on probation. The rest are given a conditional release.

While those on probation will mean additional supervisory responsibility for the county's probation department, the other 60 percent on conditional release will now require additional supervision for which there is little provision in the county budget to provide.

Additionally, judges will be asked to make a determination -- based on state-provided guidelines -- on whether a convicted drunken driver can afford the device. If he can't, the county will pick up the tab.

Each device costs $100 to install and $100 per month to maintain.

In Genesee County, there could be as many as 450 to 500 of these devices installed, and nobody can estimate at this time how many will be paid for by taxpayers.

Funded or not, all will need to be monitored by county probation, Genesee Justice or some other county agency (the new law doesn't specify who will be responsible for monitoring compliance).

Gsell said Assembly and Senate representatives throughout the state are crying ignorance of these new provisions -- they just thought they were cracking down on drunken drivers with kids in the car.

"What apparently most of the legislators did not know is that this law went beyond just DWIs with a 15-year-old or younger in their car," Gsell said. "It applies to all DWIs. None of the legislators we've talked to understood when we've asked them to please look at this. They were clueless almost to a statewide unanimous number."

It's hard to believe, though, that legislators in Albany weren't fully aware of these provisions. The bill, Govenor's Program Bill 204 (pdf), is only 25 pages long with all of the new provisions conveniently underlined. Most of code section being amended deals with ignition locks and the new language clearly specifies both the "owner or operator" aspect and numerous times the additional phrase "conditional release" is added. The only way to miss its full scope, is to not read the bill at all.

Even if a legislator just read the cover memo (pdf), the first paragraph clearly states, "In addition, this bill requires all individuals convicted of a misdemeanor or felony DWI offense to install and maintain an interlock device."

Julie Smith, director of County Probation, said the devices are effective deterrents to drunken driving -- there are a few in use in the county now -- but it's unclear how much of an extra burden the revised law will put on her department. She also pointed out that all enforcement action the courts and probation take are based on statistical evidence about risk levels and the nature of the crimes. This new law doesn't make those distinctions.

“Here we have something that uses no evidence based practice," Smith said. "Whether it’s your first DWI or your fifth, you’re getting it.”

Gsell said that while there may be complaints about spouses being required to blow into a machine to start their cars, the loudest complaints will when somebody who was supposed to be prevented from driving, manages to drive drunk anyway.

"When someone doesn’t get the notification (the device manufacturer may not be able to notify the county of a device failure for five to 10 days), and two days after it failed to operate, disables the device and goes out, still gets drunk, still kills someone -- that’s when all hell is going to break loose," Gsell said.

The committee asked that a resolution asking for the law to be amended be presented at Wednesday's Ways and Means Committee meeting.

Such a resolution would mirror what is happening elsewhere in the state, where county legislatures, as they learn about the law, are taking steps to oppose some of its provisions. Examples can be found in Greene County and Essex County.

Legislator Jay Grasso, a former Sheriff's deputy, said he made more than 300 DWI arrests in his law enforcement career, but he doesn't see the need to put these devices in the cars of first-time, misdemeanor DWI offenders.

“I have no objection, in theory, to an interlock device for the multiple offender, for the felony offender," Grasso said. "To do this for that first-time offender – and I’m not excusing them, because I certainly locked them all up – who goes to the wine tasting, who goes to the carnival, and has a few too many and gets arrested, he's not gong to be your repeat offender. But that multiple guy, yeah, let’s put the interlock device on him."

Legislator Ray Cianfrini wanted to know if there was any way the county could just not enforce this "unfunded mandate," but, he was told, there's probably no way around it.

“This is a perfect example of a good law gone wild," Cianfrini said. "I’m so angry when I hear this now."

Pictured are Julie Smith and Frank Ciaccia