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A Misdemeanor DWI in New York Equals the Ignition Interlock Device

 A Misdemeanor DWI in New York Equals the

Ignition Interlock Device

In New York, effective August 15, 2010, every person who is convicted of misdemeanor Driving While Intoxicated (“DWI”), is required to install an Ignition Interlock Device (“IID”) in any vehicle that they own or operate for a period of at least 6 months, and DMV places such restriction on the driver’s license.  In fact, several courts in Upstate New York have mandated that the IID be installed for a 1-year period.  In addition, a person sentenced to a term of probation, if permitted to drive, can expect to have the IID in any vehicle that they own or operate for the length of their probation.

What is an IID?

The IID is a device which connects through a motor vehicle’s ignition system and prevents the vehicle from starting without first determining through a breath sample the operator’s blood alcohol level.  The IID is calibrated to a set point of .025% BAC.  If a person were to provide a sample greater than the set point, the vehicle will not start.  In addition to providing the initial breath sample to start the vehicle, the person is required to submit to rolling retests within 5-15 minutes, and then to random rolling retests not to exceed every 30 minutes.  Practically speaking, the person must simultaneously provide a breath sample while also driving the vehicle.


“Own or operate” a motor vehicle

An interesting issue arises when a person is sentenced to the IID and owns a vehicle at the time of sentencing, yet is unable to drive because their license is suspended or revoked.  In such cases, if a person still owns the vehicle at the time of sentencing, the person is required to have the IID installed in their vehicle within 10 business days even though they cannot drive.  In these situations, we counsel our clients prior to sentencing to avoid this dilemma.


Who May Not Be Required to Install an IID

If the charge of DWI is reduced to Driving While Ability Impaired (“DWAI”), a traffic infraction in New York, then the person is not required to install an IID in their vehicle.  Also, it does not apply to a person convicted of Driving While Ability Impaired by Drugs, nor people convicted of Driving While Ability Impaired by the Combined influence of alcohol and drugs.


The Practical Impact of the IID

After having dealt with the IID for more than a year and a half in New York, and having spoken with clients who have had the IID installed in their vehicles, we understand the importance of avoiding a misdemeanor conviction.  The most common complaint of the IID is that the person is unable to start their vehicle because they are testing positive for a variety of reasons, e.g., mouthwash, aftershave, or even possibly having consumed alcohol the previous evening.

Additionally, a person required to install the IID in their vehicle must often provide breath samples while the vehicle is in motion.  We represent numerous clients in the New York Metropolitan area who do not have the opportunity to pull the vehicle over in order to provide a breath sample.  As a result, their IID begins beeping which means that the person must provide a breath sample.  If a sample is not provided at that time, then the person would be given one additional opportunity within 1-3 minutes after a failed or missed running test, prior to entering “lockout mode.”


Lockout Mode

When an IID enters into “Lockout Mode,” it causes the person’s vehicle to become inoperable if not serviced within 5 calendar days.  An IID will enter lockout mode upon the following events: (1) failed start-up retest, (2) missed start-up retest, (3) failed rolling retest, (4) missed rolling retest within a service period, or (5) missed service visit.


Circumvention of the IID

It is a class A misdemeanor in New York:

(a) for a defendant subject to the IID requirement to request, solicit or allow any other person to either (i) blow into an IID, or (ii) start a motor vehicle equipped with an IID, for the purpose of providing the defendant with an operable motor vehicle;

(b) for a person other than the defendant to (i) blow into an IID, or (ii) start a motor vehicle equipped with an IID, for the purpose of providing the defendant with an operable motor vehicle;

(c) to tamper with or circumvent an otherwise operable IID; and/or

(d) for a defendant subject to the IID requirement to operate a motor vehicle without such device.

VTL § 1198(9)(a)-(e).

Every IID is required to have a label affixed to it “warning that any person tampering, circumventing, or otherwise misusing the device is guilty of a misdemeanor and may be subject to civil liability.”  Vehicle and Traffic Law § 1198(10).  See also 10 NYCRR § 59.12(f).


Costs Associated with an IID

In general, most counties require that a person install a class 3 IID.  A class 3 IID requires that the person not only have the device in their vehicle, but in addition, a camera which takes pictures of the person when they are providing a breath sample.  A person must pay approximately $100 to have the IID installed in their vehicle and then must pay a monthly fee of $75-$100.

Please feel free to contact our office for additional information with respect to the Ignition Interlock Device Program, as well as any other questions you may have at (518) 456-6456.

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Peter Gerstenzang

Peter Gerstenzang

Peter Gerstenzang is the senior partner in the Albany law firm of Gerstenzang, O'Hern, Hickey, Sills & Gerstenzang. He is a 1970 graduate of Albany Law School. He is one of only three lawyers in New York State who have been Board Certified as specialists in DUI Defense Law by the National College for DUI Defense ("NCDD"). The NCDD is the only organization accredited by the American Bar Association to certify attorneys as specialists in DUI law.* His practice focuses on Criminal Defense with an emphasis on DWI cases and Vehicular Crimes. In addition, Mr. Gerstenzang is listed as a top DWI attorney in the following publications: The Best Lawyers in America®, The New York Area's Best Lawyers®, and New York Super Lawyers® Upstate Edition. He is listed as one of the "Top 25 Hudson Valley Super Lawyers 2010" regardless of category.

One Response

  1. Thank you for reading my blog and tnkaig the time to comment. I apologize for not responding sooner. For some reason comments to the posts were not forwarded to me for review and posting. I was unaware of your post. I am working on that problem. For now I will check daily.You are correct in your assessment that the long term consequences of a DUI/OUI conviction are serious, especially for a college student. They can include increased insurance costs, restrictions on foreign travel, limitations on available graduate schools, foreclosed career choices, and a host of other problems.It is difficult to tell what your daughter should do without a lot more information. It may be that there is a valid defense. It may be that the costs of defense (attorney, experts, expenses) outweigh the likelihood of success. What your daughter needs is a consultation with an attorney with a thorough knowledge of DUI defense. That consultation should give her the information she needs to determine the proper course of action for her to take. If you have not already consulted an attorney please feel free to contact me for a recommendation. I generally do not practice in the USM area, but I can direct you to competent counsel in that area. My number is 207-990-5855.

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