DWI and DWAI in New York

New York’s DWI Laws Include Penalties for BACs BELOW the Legal Limit!

You have heard the slogan “buzzed driving is drunk driving.” This phrase implies that drinking any amount of alcohol and getting behind the wheel can be dangerous. New York’s DWI laws reflect this implication. The legal limit for blood alcohol content (BAC) in New York is .08. However, even a BAC below the legal limit can result in significant penalties. If your BAC is between a .05 and .07 or there is any other evidence of impairment, you can be charged with Driving While Ability Impaired, more commonly known as a DWAI. Unlike a DWI, this offense results in a violation not a criminal charge (misdemeanor or felony).

There are several types of DWI and DWAI offenses in the State of New York:


Aggravated DWI:

DWAI (Alcohol):

DWAI (Drugs):

DWAI (Combination):

Zero Tolerance Law:

Leandra’s Law:

BAC of .08 or higher or other evidence of intoxication

BAC of .18 or higher

BAC is between .05 and .07 or other evidence of impairment

Evidence of impairment due to drugs

Evidence of impairment due to a combination of drugs and alcohol

Under the age of 21 and BAC is between .02 and .07

Drinking and driving with a child under the age of 15

Keep in mind that the level of impairment from alcohol depends on how much you drink, how much you have eaten, how long you were drinking, body weight and gender. The body can process alcohol at a rate of about one drink per hour, however these various factors can change the speed of processing. Make sure you have a rideshare app downloaded on your phone, a designated driver or a backup ride if you plan to drink.

Penalties for the above offenses vary depending on your license type, your age, whether you have prior related convictions, whether you violated Leandra’s Law and whether you submitted to a breath test, blood or urine test. Fines, jail time, community service, license suspension and/or the enrollment in the Drinking Driving Program and Victim Impact Panel are common penalties imposed by the New York criminal justice system for drug and alcohol convictions.

Finding an experienced attorney in New York State to handle your case can make a huge difference in the severity of your sentence. Should you have questions about DWIs or DWAIs do not hesitate to call the DWI lawyers at Spiegel, Brown and Fichera, LLP who have defended DWI and DWAI cases throughout the Hudson Valley and will evaluate your case free of charge.

Fidget Spinners Listed as Top Ten Dangerous Toys: Think Twice This Holiday Season


One of the season’s hottest toys, the Fidget Spinner, has recently been listed as 1 of the top 10 most dangerous toys by the nonprofit called World Against Toys Causing Harm, or WATCH. The popular spinning toy has bearings that may come loose and fly into a child’s eye or create a choking hazard for younger children. In May of this year, a child in Texas choked on one of these bearings and required surgery to remove the bearing from her esophagus. What does this mean for you this holiday season? Be wary of toys that may seem harmless and be sure to check for recalls before making any purchases.

That look on your child’s face when he or she receives that long-awaited toy on Christmas morning – priceless. Nevertheless, this Kodak moment can turn into a tragedy in the blink of an eye. The Consumer Products Safety Commission reported that in 2015 alone there were 185,500 toy-related injuries and 11 toy-related deaths in children under the age of 15. Non-motorized riding toys were the source of most injuries and 45% of deaths.

Fortunately for parents and children, consumers are protected against oversights by manufacturers who produce and sellers who distribute defective products in the state of New York. A product liability action may be brought under any or all of three legal theories: Negligence, Strict Products Liability and Breach of Warranty. Under these causes of action, you may have one or more of the following claims against the manufacturer and possibly the seller and other distributors:

Design Defect
In a design defective case, the plaintiff must prove that:

  • The product was not reasonably safe due to the substantial likelihood of harm;
  • It was feasible to design the product in a safer manner; and
  • That the defect was a proximate cause of the injury sustained.

In determining whether plaintiff has met this burden, the court applies the “risk versus utility test” which evaluates whether the economic costs are higher than the cost of changing the product’s design.

Manufacturing Defect
When there is a flaw in the manufacturing of the defective product, the plaintiff aims to prove that the product caused injury because it did not perform as intended and that another product with the identical design did perform as intended.

Failure to Warn
When a product has an inherent danger that is foreseeable if used in a certain way, even if the use is unintended, it is the responsibility of the manufacturer to issue a warning. The manufacturer is obligated to give adequate warning of how a person should correctly use the product in order to avoid injury.

In the event that your child tragically sustains injuries this holiday season as a result of a defective toy, you should seek medical attention right away and make sure you keep records of all injuries inflicted by the toy. It is also important that you contact an attorney right away because the statute of limitations clock in New York runs out three years after the injury occurs. It isn’t unheard of for manufacturers to take advantage of victims by forcing them to forfeit their right to take legal action. Contact the dedicated legal team at Spiegel, Brown and Fichera, LLP who leverage their decades of experience to guide you on how to proceed with your claim and to ensure that a claim is made against all those who may be responsible for your child’s injuries.

For age-appropriate toy buying guides and additional safety tips, follow the link to the Consumer Product Safety Commission: https://www.cpsc.gov/safety-education/safety-guides/toys.


New York Car Seat Law Changes


On October 23, 2017, Governor Cuomo signed a bill that goes into effect on November 1, 2019 requiring children under the age of 2 to remain in rear facing car seats. The underlying legislation cited a study conducted by the American Academy of Pediatrics that showed a rear-facing car seat best protects a child’s head by “preventing the relatively large head from moving independently of the proportionately smaller neck.” Failure to abide by the new law will result in a penalty of a fine of $100 and 3 points on the driver’s license for violations involving children under the age of 16. This penalty applies to violations of New York’s Occupant Restraint laws applicable to children under 16 years of age.

Motor vehicle accidents are a tragic cause of death amongst children that can often be prevented by an increased use of the appropriate safety restraints. The first step to keeping kids safe in the car is ensuring the use of a child safety seat, booster seat, or seat belt as their height and weight requirement permits. According to the Center for Disease Control and Prevention, car seats reduce the risk of infant fatality by 71% and to toddlers by 54% in passenger vehicles.

Aside from ensuring kids are buckled up, correct usage of car seats and booster seats can save lives. Knowing which kind of car seat your child should be using based on their age, height and weight is preeminently important. After installing the car seat following your specific car seat’s guidelines, you should register the car seat here to receive any recall notices should they occur. New York’s current Occupant Restraint laws require the following:

  • Children up to the age of 4 must be properly restrained in a federally approved child safety seat that is attached to a vehicle by a seat belt or universal child restraint anchorage (LATCH) system. However, a child who is under the age of 4 and weighs more than 40 pounds may be restrained in a booster seat with a lap/shoulder safety belt.
  • Children ages 4, 5, 6 and 7 must be properly secured in a child restraint system that is designed to accommodate a certain height and weight.
  • Children ages 8 through 15 must be restrained by a seat belt that has both a shoulder and lap belt. According to The CDC states that seat belts reduce the risk of death and severe injury in half for older children and adults.
  • Although not required, it is recommended that children be secured in a booster seat until the child reaches 4 feet 9 inches in height or weighs 100 pounds.

In addition to New York’s laws, the CDC recommends that children be seated in the back seat until the age of 12 to prevent injury from a front seat airbag. The safest spot for children in the back row is the middle back seat. Having your child seated in the back seat reduces his/her risk of death by 33%.

Above all, parents and caregivers must set an example for children by using a seat belt themselves. As children get older, they may be resistant to comply with the child safety restraint laws, especially if they see a role model ignoring regulations. To keep your kids safe, you must also take your own safety seriously.

Is Your Ford Explorer Poisoning You?


If you drive a Ford Explorer, it may be poisoning you. According to the National Highway Traffic Safety Administration (NHTSA), there have been more than 2,700 complaints about carbon monoxide poisoning in drivers and passengers of 2011-2017 models of Ford Explorer SUVs.  41 injuries and 3 motor vehicle accidents are presumed to be linked to the poisoning. Just this past July, 24 officers in Texas were found to have high levels of carbon monoxide in their blood, leading the police to remove 400 Explorers from the roads.

Symptoms of carbon monoxide poisoning can be dangerous for both drivers and passengers and include the following:

  • Headaches
  • Nausea and/or vomiting
  • Weakness
  • Confusion
  • Blurred vision
  • Loss of breath
  • Loss of consciousness

The NHTSA has determined that the poisoning is attributed to leaky exhaust systems in the SUVs. At the urgency of the Center for Automobile Safety, although Ford has not agreed to do a formal recall, they have agreed to inspect and repair the exhaust systems of Ford Explorer models 2011-2017 free of charge. If you or someone you love owns a 2011-2017 Ford Explorer, contact your local Ford dealership immediately to schedule an appointment to have your vehicle’s exhaust system inspected and repaired:

In Poughkeepsie – 845-462-1900
In Beacon – 845-831-1400
In Newburgh – 845-561-3900
In Kingston – 845-338-7800
In Rhinebeck – 845-876-4400

In the event you need legal assistance, don’t hesitate to contact an experienced car accident attorney at Spiegel, Brown and Fichera LLP.

Why the California Fires should be a Wake-Up Call to New Yorkers


In the wake of the destructive and horrific California fires, it has been reported that at least 40 people have died and 5,700 homes and businesses have been destroyed since the wildfires began making it one of the deadliest fires in California’s history. In just 30 seconds a single flame can turn into a full-blown fire capable of great destruction. Although wildfires are uncommon in New York, other causes of fires including electrical problems can destroy homes and other buildings. What may surprise you is that your home insurance may not cover your losses if your house is destroyed in a fire.

In recently reported news, two years ago a woman in Long Island was denied her claim after a house fire. The reason? Her application failed to mention that she owned a pit bull. Last year a family in Queens lost their home to a fire. What was the insurance company’s reason for denying their claim? The house had a third apartment and the family was only paying to insure a two-family structure. Later that same year a family in Middletown was forced to pay out of pocket to stay at a hotel after a house fire because the home insurance policy didn’t cover rent in the event a family is displaced by a fire.

When an insurance company fails to pay on a claim there are two potential causes of action: Breach of contract and breach of the duty of good faith. A breach of contract claim is based on the insurance company’s failure to pay according to the terms of their contract whereas a breach of the duty of good faith is based on the insurance company’s failure to thoroughly examine a claim and reasonably negotiate a settlement. Unfortunately, New York is one of the few states that does not permit a private cause of action against an insurance company for bad faith. Despite this, the New York Court of Appeals has held that policyholders can recover consequential damages or “extra contractual damages” from insurance companies if the damages were foreseeable at the time the policy was written. However, subsequent cases hold that these damages must be alleged within the breach of contract claim not as a separate bad faith claim.

Since lawsuits against insurance companies for failure to pay claims are limited in New York it is important to make sure your homeowner’s insurance policy adequately protects you in the event of a fire. Some tips when shopping for homeowner’s insurance are as follows:

  • Ensure that the information on the application is complete and accurate
  • Make sure the policy covers rental fees in the event you are displaced from your home
  • Look for language that protects the contents of your home in the event they are damaged in a fire
  • Make sure it covers other detached structures on your property such as a garage or shed

For additional information or in the event you have been injured in a fire, contact the legal team at Spiegel, Brown and Fichera.