By Stephanie Goutos, Albany Government Law Review
On October 11, 2009, an intoxicated Carmen Huertas got into her vehicle and began to drive seven young children to a slumber party. Manhattan District Attorney Robert Morgenthau would later report that Ms. Huertas had “brushed off warnings that she was too drunk to drive,”  and authorities stated she was playing a guessing game with the passengers, asking them to raise their hands if they thought they would make it home without crashing. Ms. Huertas subsequently lost control of the vehicle, which swerved off the road and flipped over on the Henry Hudson Parkway. Huertas’s blood alcohol limit was tested at the scene of the accident and reported to be above 0.13 percent, surpassing the legal limit of 0.08. One of the passengers in the car was eleven year old Leandra Rosado, who was thrown from the vehicle as a result of the accident, and did not survive.
Prior to 2009, there was no increased penalty in New York for driving while intoxicated with a child under the age of 15 in the vehicle. Devastated by his daughter’s death, Leandra’s father, Lenny Rosado, launched a crusade to make New York’s DWI laws tougher. Governor David Paterson took notice, recognizing that in 2007 more than 7,000 people were injured as a result of accidents related to driver intoxication. Of those 7,000 individuals, 344 were killed, including nearly 200 children under the age of 14.
Lenny Rosado was granted some solace on November 18, 2009 when Governor Paterson signed into law the Child Passenger Protection Act, which subsequently became known as “Leandra’s Law.” Governor Paterson announced “too often drivers under the influence of alcohol or drugs choose to compromise not only their own lives, but also the lives of our children. Today, we say enough.” Leandra’s Law mandates that first-time offenders with a blood alcohol level of .08 or higher, driving with a child age 15 or under in the vehicle, will “automatically have their drivers license suspended, will have to install an ignition interlock device in their car, and may be charged with a Class E felony punishable [by] up to four years in prison.” In addition, an intoxicated driver who causes serious injury to a child “may be charged with a Class C felony punishable [by] up to 15 years in prison, and drunken drivers who cause the death of a child will be charged with a Class B felony that could [carry a sentence of] up to 25 years in prison.” Finally, any parent that is charged with driving while intoxicated with a child age 15 or under in the vehicle, will be reported to the Statewide Central Register of Child Abuse and Maltreatment.
An alcohol ignition interlock device attaches to the ignition of one’s vehicle, and does not allow the operator to start their engine without first providing a breath sample for analysis of their current alcohol level. It is generally agreed upon by experts that these ignition interlock devices have been effective in reducing recidivism rates among drivers that have been convicted of drunk driving in the past. However, there are two main weaknesses with this current penalty. First, statistics show that this penalty is only a short-term solution; a recent study found that operators utilizing the interlock technology have a sixty four percent reduction in DWI recidivism, yet “once the interlock is removed,” the recidivism level dramatically increases again. Essentially the interlock device “provides a period of grace where an offender cannot drink and drive, but when that period ends, the risk of recidivism returns to normal.” Pragmatically, this research demonstrates that while effective initially, this success is short lived. Once drivers are no longer restricted by the interlock device, they are likely to resume driving while intoxicated.
Secondly, reports have indicated that many offenders are not being uniformly subjected to the ignition interlock devices, or have found ways to avoid it all together. The Daily News reports that despite the recent legislation, “most convicted drunken drivers are dodging the interlock requirement.” Many of the offenders are “unloading cars that will sit idle in order to avoid a $100 installation cost and monthly fee of about $100.” The Daily News further noted that:
In the one year since the Leandra interlock rule has been [in effect], just 44% of convicted drivers statewide have installed the device. In the city, the figure is only 21%. The other 79% never owned a car, got rid of it after conviction or promised the judge that they wouldn’t drive.
Other offenders are evading the device by “switching the titles of their vehicles into the names of family members or friends.”
III. Proposed Solutions
Senate Transportation Committee Chairman Charles Fuschillo and Assemblyman Harvey Weisenberg, recognizing the glaring imperfections that currently exist under Leandra’s Law, proposed new legislation in October 2011 hoping to close those gaps and strengthen public safety. The intended legislation would make it harder for an offender to claim that they do not have a vehicle, require the court to determine whether the offender has good cause for not installing an ignition interlock device, remove the incentives for evading the interlock penalty by requiring the offender to wear a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet for a set period of time, prevent offenders from getting their licenses back prior to completing either an interlock or SCRAM requirement, and lastly create felony charges for convicted DWI offenders who drive drunk while holding a conditional license. Nassau County District Attorney Kathleen Rice lent her full support to this legislation, noting:
We have over a year’s worth of experience with the mandatory interlock provision. We have seen firsthand how easy it is for the drunk driver to avoid installing an interlock and in order for this groundbreaking legislation to work the way it was intended, the loopholes must be closed. These tighter restrictions would close those loopholes and sharpen the teeth of a law intended to save lives, protect motorists, and keep dangerous drunk drivers from getting behind the wheel again.
In contrast to focusing solely on the ignition interlock devices as the primary solution in decreasing drunk driving, some individuals have argued lawmakers should instead consider implementing mandatory counseling programs for the offenders. The Pacific Institute for Research and Evaluation has found that repeat offenders that are subjected to some type of mandatory treatment program reduce their recidivism rate by seven to nine percent. Furthermore, when sentenced to a special DWI facility, an offender can reduce his recidivism rate by seventy-five percent. Treatment options that “combine strategies, such as education in conjunction with therapy and aftercare, appear to be the most effective for [both] repeat [and] first-time offenders.” Pairing this treatment with the implementation of the ignition interlock device would aim to correct the current leading weakness of this penalty, namely that it is only effective in reducing the offender’s recidivism rate temporarily. However, this solution would not only be costly for offenders and the state, but it would impose a heavy burden on the court system to assess each offender on a case by case basis to determine what specific type of treatment would be most effective for him.
The enactment of Leandra’s Law has shined a spotlight on the concerns surrounding drunk driving, and strived to protect those left most vulnerable by individuals who choose to do so. However, there is still more work to be done. On its own, the ignition interlock device is not being utilized to its full potential, and several additional solutions have been posed. It remains to be seen whether or not Leandra’s Law, in its current state, will have a long term effect on reducing the DWI recidivism rates that are currently present for offenders in New York.
 Simon Akam & Colin Moynihan, Bronx Woman Is Charged in Crash That Killed Girl, 11, N.Y. Times, Oct. 11, 2009, at A18.
 Jennifer Peltz, Carmen Huertas, Drunk Driver, Pulled Daughter Out of Car Crash While Another Girl Lay Dying on the Side of the Road, Huffington Post, Oct. 23 2009, http://www.huffingtonpost.com/2009/10/27/carmen-huertas-drunk-driv_n_335876.html.
 Cheryl Robinson, New York Toughens Drunken Driving Law, CNN, Nov. 19, 2009, http://articles.cnn.com/2009-11-19/justice/new.york.dwi.law_1_dwi-interlock-child-passenger-protection-act?_s=PM:CRIME.http://www.huffingtonpost.com/2009/10/27/carmen-huertas-drunk-driv_n_335876.html.
 Akam, supra note 1.
 Robinson, supra note 3.
 Sewell Chan, Tougher Penalties Sought for Driving Drunk with Children, N.Y. Times City Room (Aug. 13, 2009, 4:04 PM), http://cityroom.blogs.nytimes.com/2009/08/13/tougher-penalties-sought-for-driving-drunk-with-children/.
 Id., see N.Y. Veh. & Traf. § 1192-2a(b) (McKinney supp. 2011).
 Robinson, supra note 3.
 U.S. Dep’t of Trans., Nat’l Highway Traffic Safety Admin., Key Features for Ignition Interlock Programs 9, (2010), http://www.nhtsa.gov/staticfiles/nti/impaired_driving/pdf/811262.pdf.
 Id at 9–10.
 Lauren Kerby, Ignition Interlock: How Effective are Mechanical Police? 1, 2008, http://www.dwiresourcecenter.org/pdf/PositionPaper_Interlock.pdf (citation omitted).
 Too Many Convicted Drunken Drivers Dodge Interlock Provision of Leandra’s Law, Editorial, Daily News, Oct. 12, 2011, http://articles.nydailynews.com/2011-10-12/news/30287691_1_interlock-requirement-leandra-s-law-drunken-drivers.
 Joe Mahoney, Otsego County Sheriff wants DWI Scofflaws to Pay Fines, Daily Star (Oneonta, NY), Nov. 16, 2011, http://thedailystar.com/localnews/x1121442896/Otsego-sheriff-wants-DWI-scofflaws-to-pay-fines.
 Press Release, New York State Senator Charles J. Fuschillo Jr., Senator Fuschillo, Assemblyman Weisenberg, D.A. Rice & Father of Leandra Rosado Call for Stronger Leandra’s Law (Oct. 16, 2011), http://www.nysenate.gov/press-release/senator-fuschillo-assemblyman-weisenberg-da-rice-father-leandra-rosado-call-stronger-l.
 Under the proposed legislation, if the offender does not own a car, the ignition interlock device “must be installed in at least one car registered to their household, or in the car they used while committing the DWI offense.” Id.
 Offenders would be required to submit a sworn, signed affidavit to the court to ensure that they have not merely transferred ownership of their car in order to evade installation of the interlock device. Id.
 Kerby, supra note 18, at 1.
 JC Fell, et. al., Pacific Institute for Research and Evaluation, Guidelines for Sentencing DUI Offenders in the United States 1, http://nasje.org/resources/HCDrunk/SUP4–PIREGuidelinesForSentencing.pdf
 Id. at 2.