PIX11 Investigates: Legal loophole leaves public in danger of impaired drivers

Posted at 9:49 PM, May 27, 2014
and last updated 2014-05-28 07:45:54-04

NEW YORK (PIX11) — An 11-year-old girl’s tragic death inspired a law aimed at punishing impaired motorists who put children’s lives at risk, but a loophole in that legislation often lets those dangerous drivers go free, according to a co-author of the law who is pushing for stricter legislation.

Joseph McCormack is a veteran prosecutor and chief of the Vehicular Crimes Bureau for the Bronx District Attorney’s office.

He helped to write Leandra’s Law, which increased prison time for drunken drivers carrying children younger 15 in their car. But he said it’s still possible for impaired drivers to get away with being on the road with no liability — and even killing people.

“I’ve seen cases where the driver of the car is almost unable to stand, but if it was one of these substances that’s not on the list, I can’t charge him,” McCormack told PIX11 Investigates.

McCormack referred to a list of banned substances in Public Health Law 3306, which does not include every kind of substance that can make a driver high and prone to possibly killing someone on the road.

How a loophole is allowing some who drive under the influence of drugs to escape charges

If the substance the suspect was impaired with is not on the list, they may escape charges.

“What’s not on the list: synthetic marijuana and things like bath salts,” McCormack said.

Both are mind-altering drugs.

“Sometimes, you have people taking inhalants, where they take Dust Off, which is a computer cleaning spray. They take the top off and they snort that. That inhalant is not on the list, either,” McCormack said.

He cited a 2004 case where an impaired driver killed 18-year-old Kristian Roggio, of Brooklyn, and later had manslaughter charges dropped because the Dust Off he’d inhaled was not on the list of intoxicating substances in the Public Health Law.

McCormack is pushing hard now to close the legal loopholes before the New York State legislative session ends in June.

State Senator Tony Avella, of Queens, who serves on the Transportation Committee, said he’s backing a bill to expand the definition of impaired driving to include inhalants.

“Even though it’s passed the State Senate, it’s never passed the Assembly,” Avella told PIX11.

McCormack is frustrated by another aspect of the law which prevents police officers from testing a driver’s blood or executing a search warrant unless they can identify what caused a person’s impairment or unless someone is dead or seriously physically injured at the scene.

McCormack wants police agencies to have easier access to search warrants, if they have probable cause to impose one.

McCormack told PIX11 he does believe Leandra’s Law, passed in 2009, has had some impact.

It was created after 11-year-old Leandra Rosado was killed in a horrific drunken driving crash in 2009 on the West Side Highway in Manhattan. Leandra was riding with six other girls in a minivan. The driver was Carmen Huertas, the drunken mother of one of the girls. Huertas lost control of the minivan, which overturned and killed Leandra.

Some 925 drivers were arrested for driving impaired with young children in the car in 2010, the first full year Leandra’s Law was in effect.

The next year, the arrest numbers dipped to 886 and have declined each year since. In 2013, the number was down to 823 statewide.