We have previously dealt with the issue of judges arrested for DUI and how to address such cases in their continuing on the court (here and here and here and here and here). Another such case has arisen with the arrest in New York of Judge Leticia Astacio. While it was a Saturday morning, police say that Astacio was on her way to work when she had an accident with another car on Interstate 490. She refused to take a Breathalyzer and was arrested for DUI. Astacio is a former assistant district attorney who prosecuted drunk driving cases.

Astacio was elected to the court in 2014 and was scheduled to preside over criminal court arraignments. Her car had heavy front end damage and two flat tires on the driver’s side. In the police report, a trooper says he smelled a strong odor of alcohol on Astacio’s breath and charged her with DWI. She refused the breath test.

What makes this case particularly interesting is that Astacio refused the breathalyzer so the charge was made on the basis for the refusal and the observations of the officer. The degree of intoxication was either not determined with a blood alcohol content (BAC) test or has yet to be reported if carried out after the arrest.

In New York, you are required to take a blood, breath, urine, or saliva test if you are arrested for a DWI. Such tests can be demanded with any accident by an officer who acts under New York’s “implied consent” law. Under this law, if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your blood, breath, urine or saliva to determine your BAC.

If an officer simply suspects DUI in a stop, the driver may refuse but the Department of Motor Vehicles (DMV) can suspend his license for one year. Many lawyers recommend not taking the test if there is an accident where someone is injured or where there is a prior DUI offense.

For a first offense with a BAC of .08% and higher, there is generally a license suspension of a minimum of six months. It goes up to one-year for drivers under 21 or with BAC over .18. There is no minimum incarceration level for a first offense but there is the potential for up to one year pending case. First offenders are required to use an ignition interlock device in New York. Fines for a first offender range from $500 to $1000 (with higher fines of between $1,000 and $2500 if BAC is over .18).

The question is how treat a judge who has driven under the influence. It raises some tough questions. According to a recent report, the charge was only for a misdemeanor and she could be allowed to continue to hear cases.

Does the level of the BAC matter? The level of legal intoxication has been dramatically lowered over the years so that a single drink can now trigger an arrest. Yet, regardless of the level, it is still a crime that puts others at risk.

Does it matter that a judge refused the test? After all, such a refusal is a right if a driver is not under arrest.

Assuming that the judge is found guilty but is not given jail time, should this be a matter for a judicial reprimand or censure rather than removal from the bench? A prior judge was simply given a censure

Finally, should such a conviction, if it occurs, result in a loss or suspension of a license by the New York bar?