The Elliot Schlissel New York Law Blog

James May, Jr. Of Melville, New York and his friend, Michael Hoenig, had gone to the Nutty Irishman Bar in Farmingdale with their friend Michael Rahner.  Michael was the designated driver for the group.

During the course of the evening, James May, Jr. and Michael Hoenig brought their friend Michael Rahner a series of drinks.  The boys were out drinking on December 2, 2007.  On the way home from the bar, there was a car accident and a passenger by the name of Ryan Luciere was injured.

New York has a Dram Shop Law.  This law makes bars financially responsible if a patron of theirs’ is served alcoholic beverages while intoxicated.

Ryan Luciere of Plainview sued the Nutty Irishman Bar for serving alcohol and beverages to Michael Rahner while he was intoxicated.  The attorney for The Nutty Irishman then sued Michael’s friends, Michael Hoenig and James May, Jr., claiming that when they bought drinks for Rahner, they were in violation of their oral agreement as to who would be the designated driver.  The Nutty Irishman sued these two men to reduce their financial exposure in the case.

Judge Randy Sue Marber rendered a decision on September 29, 2010, that stated that although the two friends may have had a moral obligation to avoid buying drinks for the designated driver, this created no legal responsibility for them.  She dismissed the lawsuit brought by The Nutty Irishman against theses two men.  It should be noted that Michael Rahner was charged with Driving While Intoxicated (DWI) after the crash.  Upon his trial on this criminal charge, he was acquitted.

About Our Firm

We have extensive experience in representing our clients on misdemeanor and felony charges.

Our office represents individuals charged with driving while intoxicated.  We also assist individuals who are injured in car accidents, wrongful death cases and who are injured as a result of a slip and fall.

If you have questions on these issues, feel free to contact us for a free consultations at 1-800-344-6431, 516-561-6645 or 718-350-2802.

In April of 2010, Louis Calixto,  a woman was violently attacked in the East Village.  He beat her so savagely the blows could be heard over the noise on the city street.  The woman was beaten so severely that she refused to testify.  She was afraid that her testimony would lead to another beating.  Mr. Calixto’s attorney brought an application to dismiss the charge of assault in the 3rd  degree pending  against him.  He claimed in his application that the prosecutor could not establish “physical  injury” based solely on the testimony of eye-witnesses to this horrible event.

The judge sitting on the case, Manhattan Criminal Court Judge Michael J. Wyvinsky,  ruled against Mr. Calixto’s application.  The judge stated “while the most direct and  strongest allegation about any physical injury suffered by a victim would typically come from the victim herself, there is an objective line above which one can reasonably infer the requisite level of physical injury based on the specific allegations regarding the nature of the assault itself.”

The judge also stated in his decision “what is alleged in this case is a vicious and violent attack, not petty slaps.  That attack was brutally loud.  It resulted in discoloration of the victim’s face where she had been attacked and it caused the victim to both cry out while she was attacked and remained lying on the ground once it was over.”

The judge further stated “that the witness to the incident observed Mr. Calixto strike a female in the head 2 times with a closed fist and that she could hear the sound of the closed fist hitting the victim’s skull.”  This case is now scheduled for trial.  Hopefully, this vicious assault will result in the conviction of the alleged perpetrator!!

Criminal Defense

The criminal defense lawyers of the Law Office of Elliot S. Schlissel represent individuals charged with assault, battery, sexual offenses, white collar crimes, driving while intoxicated and shop lifting.  Should you be the subject of a police investigation or be arrested and charged with a misdemeanor or felony, call us, we can help you.  Our phone numbers are 1-800-344 -6431; 516-561-6645 and 718-350-2802.

In New York, it is against the law to text while driving.  This seems like a worthwhile way of demotivating people from engaging in this activity, but there is problem with the new law.

The new law is does not make texting while driving a primary offense.  The police officer must first see someone violating the law.  However, he cannot pull the car over unless they are also violating another law.  What started out as a good idea is not being carried through.

Automobile Association Study

The Automobile Association of America recently conducted a poll of their members in New York State.  Ninety-percent of their members stated that texting while driving should be a crime.  Drivers are concerned about this behavior.  They feel it can cause accidents and innocent people will be injured.

The New York State Legislature should take action to pass a tougher law regarding individuals who text message while driving. Texting while driving creates unsafe conditions on our roads and innocent people will be killed.

About Our Firm

The Law Office of Elliot S. Schlissel is a general practice firm.  We handle all aspects of matrimonial and family law, including divorce, custody, orders of protection, child support, spousal maintenance, child abuse and child neglect.

Our firm also represents individuals charged with misdemeanors and felonies.  We represent individuals alleged to have driven while intoxicated (DWI) and other vehicular crimes, such as driving with a suspended license or driving without a license.

Should you be in need of a lawyer, call us. Since 1978, we have been providing high-quality professional legal services for our clients at reasonable fees.  Our phone numbers are: 1-800-344-6431; 516-561-6645 or 718-350-2802.

Approximately thirty-five years ago, William Lynch and his brother were sexually abused by a Jesuit priest.  During the past thirty-five years, he has dealt with issues involving depression, nightmares and suicide.  He had lived with anger and pain for more than three decades.

A Priest Rapes And Molests Five and Seven-year-olds

Father Linder, now sixty-five years of age, has been accused by a dozen people of sexual abuse.  Among those he abused were his sister, nieces and nephews.

Payment of $625,000 in Damages in 1998

Father Lindner has also been named in two additional lawsuits involving sexual abuse.  These cases involved in a $660 million dollar settlement struck between the Catholic Church and approximately 550 sexually-abused individuals in 2007.

Anger Boils Over

Mr. Linder was charged with criminal assault. His attorney has plead not guilty and the case is currently pending.  Mr. Lynch said “I wanted to exorcise all of the rage and anger and bitterness he put into me. You can’t put into words what this guy did to me. He stole my innocence and destroyed my life”.

I question whether any jury will find Mr. Lynch guilty of taking his revenge for the insidious, incredible and outrageous actions of Father Linder.

About Our Law Firm

The law office of Elliot Schlissel is a full-service law firm.  We have a staff of five lawyers and an equally dedicated support staff to assist us in representing individuals.  We handle all types of criminal cases.  We represent individuals charged with drug offenses, domestic violence, assault and battery, juvenile defenses, shoplifting, burglary, driving while intoxicated, weapons possession and other types of misdemeanors and felonies.

We represent individuals charged in sex crimes, white collar crimes, violent crimes and we also can handle traffic tickets.  We assist our clients by making bail arrangements to have them released from jail.  Should you and friend or family member be charged with criminal matter feel free to contact us at 1-800-344-6431, 718-350-2802 or 516-561-6645.

We are aggressive and experienced criminal defense lawyers.

On October 11, 2009, Carmen Huertas was driving on the West Side Highway in Manhattan.  She had a blood alcohol level of .012.  She was speeding.  In addition, she had 7 young girls in the car with her! Carmen lost control of her car due to her speeding while intoxicated.  The car flipped over, throwing some of the young girls from the vehicle.  One of the girls, an eleven-year-old named Leandra Rosado, was killed as she was thrown from the car.

An outraged New York State Legislature, in response to this incident, passed a new law called “Leandra’s Law” that increased the penalties of driving while intoxicated with children in the car.

Ms. Huertas Pleads Guilty

Ms. Huertas has pled guilty to various criminal charges including, but not limited to, second degree manslaughter.  Justice Charles H. Solomon, sitting in the Supreme Court in New York County, has imposed a sentence of four to twelve years on Carmen Huertas.

The judge at the time of sentencing was outraged.  He stated, “I do not understand how someone could drink, get into a car with all these young girls and go 70 miles an hour on the West Side Highway”.  The judge further stated at the time of sentencing, “ it is almost like you asked for a tragedy. It is just inconceivable on many levels that you would do that”.

At the time of the sentencing, Leandra’s father Lenny Rosado held up a picture of his beautiful young daughter.  He gave a speech at the time of sentencing.  He asked the judge that his daughter’s death should not be in vain.  Mr. Rosado felt that Ms. Huertas should serve at least eleven years in jail, one for each year that his daughter lived.  He described his daughter Leandra in the following manner: “Leandra was a very happy and funny person”.  Mr. Rosado stated that, “one day Carmen Huertas will get out of jail and she will be able to see her kids. I won’t”.

Driving while intoxicated is a problem that society needs to deal with. The families of victims in cases such as this one never fully recover.

About Our Firm

The law office of Elliot Schlissel, for more than 33 years, has represented individuals charged with crimes in New York metropolitan area. We represent individuals charged with driving while intoxicated, weapons possession, sex crimes, white collar crimes, violent crimes, drug offenses, domestic violence, misdemeanors and felonies of all types.  Should you, a friend or family member need an attorney to deal with a criminal matter, call us.  We are available seven days a week.  Our phone number is 1-800-344-6431, 516-561-6645 or 718-350-2802, or contact us by email.

Governor David A. Patterson recently signed a new statute into law that affects individuals convicted of drunk driving.  The new “Driving While Intoxicated” statute requires individuals convicted of drunk driving to install interlock devices in their cars.

The new law is referred to as “Leandra’s law”, named after Leandra Rosado, an eleven-year-old who was killed in a car crash in New York City when she was hit by a drunk driver.

A vehicle with an ignition interlock system cannot be driven unless the driver first blows into the device, which checks his or her blood alcohol level.  The law also requires individuals convicted of driving while intoxicated to install global positioning systems in their vehicles at their own expense, and to keep them their for a minimum of six months.

Some lawyers argue that the new law requiring the interlock devices will cause more offenders to take their cases to trial, since installing such a device in a vehicle can be very costly.  However, Marie McCormick, who heads the Nassau District Attorney’s Vehicular Crimes Bureau, stated in a Newsday article that the higher cost associated with going to trial would most likely dissuade many alleged offenders from taking this action.

New Felony Statute:

In December of this year, a law went into effect in New York which makes it a felony for an individual to drive while intoxicated or under the influence of drugs when there are children in the car.

Being charged with driving while intoxicated at one time was a minor offense.  This is no longer true.  Today, being convicted of a “DWI” can cause an individual to lose his or her license, pay a large fine, be incarcerated and now have to install an interlocking and global positioning device in his or her car.

Should you or a friend be faced with being charged for driving while intoxicated, it is crucial for you to have effective representation.  Contact the Law Offices of Elliot S. Schlissel 1-800-344-6431, or by email.

A local newspaper recently published an article about an incident that occurred recently on a New York highway in which two individuals were charged with driving while intoxicated.

An on-duty highway police officer noticed that a vehicle was being driven erratically.  After pulling over the vehicle, the police officer gave the driver a series of sobriety tests and concluded that the driver was intoxicated.  The officer thereafter started the procedures to arrest the individual and placed him in the police car to be transported to the precinct.

While the intoxicated driver was being placed under arrest, the person in the passenger seat of the vehicle which had been pulled over had moved over to the driver’s seat.  The passenger then started the car and drove off.

The officer had noticed initially that both the driver and the passenger were intoxicated when he first pulled the car over.  He followed the vehicle for a period of time and soon thereafter pulled over the vehicle which was now being driven by the former passenger.

Upon further investigation, the police officer came to the conclusion that the passenger was also intoxicated and arrested him too.

Conclusion

The moral of this story is that if you are in a vehicle driven by someone else who is intoxicated and you have been drinking as well, do not drive the vehicle away!  Ask for help or ask the police officer to call a taxicab for you.  There are serious penalties resulting from a conviction for driving while intoxicated.

Should you have any questions or issues involving the crime of driving while intoxicated, feel free to call the DWI defense attorney’s at the law office of Elliot S. Schlissel at 1-800-344-6431, or by email.

Here we go again. As we explained back in April of last year, it’s quite possible to get a DWI just for being in or near your car, even if you’re not driving.

One evening in Minnesota, Daryl Fleck, had about a dozen beers. He felt intoxicated and he decided to sleep it off in his car which was parked outside of his house. When the police arrived, he was sleeping in his car with the driver’s side door in an open position.

Daryl had left his keys in the center console of his car. The car keys were nowhere near the ignition. At the time the police arrived the engine was cold and there was no indication the car had been started. The police officers determined that Mr. Fleck was intoxicated. His explanation as to why he was sleeping in the car made no sense to the police.

Minnesota has a legal blood alcohol limit of .08. At the time of his arrest, Mr. Fleck’s blood alcohol level was .18.　

Mr. Fleck was convicted of driving while intoxicated in Minnesota because he had access to the vehicle while intoxicated. He received 48 months in jail plus 5 years probation. He appealed his case all the way up to the Minnesota Supreme Court which affirmed his conviction.

His attorneys were able to show the court that even if Mr. Fleck had put his keys into the ignition and tried to start the car it would not have started. This is because the car was not in running condition.

There have been case in New York that our office has been involved with involving individuals charged with driving while intoxicated who had never started their car. I have repeatedly told clients that in the event they are intoxicated, do not go near your car. The courts have given very liberal interpretations in the State of New York as well as in the State of Minnesota as to when the crime of driving while intoxicated occurs. In New York you simply need to be in your car in the driver’s seat in an intoxicated state with access to the ignition key.

Should you be charged with driving while intoxicated or driving under the influence of alcohol, it is important that you consult a law firm experienced in handling these matters. For more than 30 years, the Law Offices of Elliot S. Schlissel have represented individuals on DWI and DUI matters. We have provided excellent representation to hundreds of individuals who have been charged with drinking while driving offenses. Should you or a loved one be faced with a criminal charge of driving while intoxicated, e-mail or call us at 800-344-6431. We can help you.

Picture courtesy of wcco.com.

In New York, pursuant to NY VTL § 1192, one may be convicted of the serious criminal offence of Driving While Intoxicated (“DWI”) if he “operate[s] a motor vehicle” while legally intoxicated. The question is: What does it mean to “operate a motor vehicle”? Is it enough to turn on the engine to violate the statute? Can you be arrested for walking toward your car? What if you sit in the car with the keys in your pocket?

In a case in Connecticut, People v. Cyr, officially released just two days ago, Michael Cyr was intoxicated, he started his car using a remote starter, and then sat down in his car, with the keys in his pocket, to go to sleep. The Connecticut court upheld Cyr’s conviction because, it explained, the law in that state is that “[t]he act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle’s motor. Each act, in sequence with other steps, will set in motion the motive power of the vehicle… Each act therefore constitutes operation of the vehicle…”

How does this rule compare to the rule in New York?

In New York, if one is drunk while sitting in his car, and it is reasonable to infer that he (or she) had just driven, or was probably about to drive, he can be convicted of a DWI. In People v. Membrino, 181 Misc.2d. 796, 799 (NYC Crim. Ct. 1999), citing People v. O’Connor, the court stated the following rule for NY DWI convictions: Operating a motor vehicle “includes the act of ‘[using] the mechanism of the automobile for the purpose of putting the automobile in motion even though [the vehicle does not move]‘.” (emphasis added)

The court in Membrino further cited the Court of Appeals that “An established line of authority in New York and elsewhere holds that … operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion.” (emphasis added)

As stated above, even if police make a reasonable inference that one is aboutto drive intoxicated, he may be convicted of a DWI. In the case of People v. Marriott, 37 A.D.2d 868, the defendant was observed twice by police in his car; the first time with the engine off and the second time with the engine on. The court there held that since it was reasonable to infer that Marriott was about to dive, the act of sitting in the car with the engine on constituted “operating a motor vehicle” while intoxicated.

In Connecticut, the mere act of sitting in a car while drunk is enough to violate the statue, but New York is slightly more lenient. The Court in O’Connor at least stated that “[w]here there exists a logical, credible explanation such an inference can be defeated [because  t]he definition of operation cannot so alter its ordinary meaning as to create a new crime not intended by the legislature.” 

The defendent has the burden of rebutting the presumption that he was about to drive his car, so specific facts must be garnered showing a reasonable explanation why the defendant was in his car.

As Gideon, at the Public Defender blog points out, a person may just be sitting in his car with the engine on so that he has a warm place in the winter to sleep off whatever he drank. In New York though, the defendant must provide facts which indicate a reasonable, alternative explanation for the client’s presence in the car in order to avoid a DWI conviction.

As always, if you or someone you know has been arrested for a DWI, give us a call.

Picture courtesy of jalopnik.