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?
She will probably be appointed to the Supreme Court..,soon.!!!!
Isn’t that how things work….reward them for wrong doing.
We seem to only check for alchohol, and predominately limit the chemistry test to exhalation.
Actually, a sweat test seems to be a good method for the most popular families of intoxicants. Simply swatch a forehead or back of the neck or other exposed area.
A swatch could be taken as a first screen.
Now, would there be a requirement to consent?
After all just smelling alcohol on the breath is a first screen.
JT said: ” regardless of the level, it is still a crime that puts others at risk.”
That kind of logic could be used to justify making it a crime to drive while listening to Rap music.
Did she hurt anyone? Damage the other vehicle?
Should everyone that causes or has a car accident be arrested? After all, that kind of driver certainly puts others at risk.
bill McWilliams – there are accidents and then there are accidents. Driving while impaired is always a problem regardless of what causes the impairment.
Paul writes, “She took a morning bracer or two.” That may be true, but to get there the jury must believe 1) the cop who said he smelled alcohol and 2) that she was DUI. As I’ve learned – just on this listserve for example – cops sometimes have multiple motivations, some leading to less than honest and accurate incident reports. The prosecutor may have a very difficult time if the cop doesn’t present well and the judge testifies about facts yet unknown.
stevegroen – in Arizona you automatically lose your license for 6 month or a year for refusing the DUI test. However, she may feel secure in betting the rest of it.
Paul writes, “stevegroen – in Arizona you automatically lose your license for 6 month or a year for refusing the DUI test. However, she may feel secure in betting the rest of it.” Knowing the repercussion of refusing to test, the good judge sure seems to have had something to hide, unless the cop was out of line and harassing her for no justifiable reason. It may add to your “morning bracer” allegation.
Gary T: Family court judges should be exempt from judicial discipline for the insanity they nobly attempt to survive. Their lives are counted in dog years.
A very good criminal defense attorney in San Diego told me once he’d rather defend a double homicide than appear in family court.
would have taken that test.
We had another judge here in NY go through the same thing, Gerard Maney a family court judge.
He was found drunk driving, and tried to use his status as a judge to get out of the charge.
He was found guilty, and was “censured” with a strong slap on the wrist. He is still practicing judgery on the Albany County Family Court, I think he is the chief judge of that court.
http://www.timesunion.com/local/article/Panel-slaps-Albany-jurist-928419.php
Paul C. Schulte.
stevegroen – raises the point I am interested in. What the heck is she doing drinking before work?
She was probably still drunk from the previous night.
stevegroen
Would a private employer punish the employee for a DUI? I’d guess probably not.
Almost any employee whose job required significant driving would be termed. To make it more comparable you might compare her to a fleet compliance officer whose responsibilities included terming any driver who received a DUI. I suspect that person would be let go.
Rick – if she had stopped drinking the night before, she would that taken the test. She took a morning bracer or two.
stevegroen – raises the point I am interested in. What the heck is she doing drinking before work? It is hard to tell from the picture what her age is, but she is clearly old enough to be a full-blown alcoholic. Here is where I differ with Steve. I don’t think they should put her in rehab. That never works. They should offer her rehab and if she takes it and completes, monitor her for the next two years. However, she does not sit on the bench until she has been out of rehab for 6 months.
Now, to the case itself. I think she is going to get off. She prosecuted DUIs so she knows what it takes to get out of one. She will either defend herself or hire one of the attorneys who bested her.
Is the Judge not also presumed to be innocent in a court of law until it’s PROVEN beyond a reasonable doubt by a jury of her peers that she isn’t?
Her refusing to be tested should not weigh against her because it is tantamount to punishing her for the exercising of a right guaranteed to her by the constitution. I doubt she came to be on the bench because she’s someone who doesn’t know her way around in the law. On the contrary, if they didn’t know every trick in the book prior to arriving on the bench, they will have seen enough cases brought before them that spells out every way conceivable talented lawyers do what they do to win their cases and she’ll be certain to avail herself of that knowledge when it comes to her own case. imho
Prof. Turley’s question is a difficult one to answer: If she’s convicted, what level of judicial or attorney discipline should there be?
On the one hand, a conviction leads to sentencing on a level any of us would receive (hopefully), but on the other what does the state bar do about this, if anything, when public confidence in the Judiciary has to be one of its highest priorities?
Would a private employer punish the employee for a DUI? I’d guess probably not. Judges are human, too, so should maintaining public confidence affect her employment? I’d guess it should, so some form of judicial punishment has to be meted out, regardless of her right to remain silent.
If she’d tested above .08 and her blood alcohol content were below .18, then I’d think censure and rehab (and individualized counseling for drinking before work) would be in order.
Her refusal to be tested, however, would weigh against her not only for the implied DUI but also for the level of the DUI as more than .18, which should be considered recklessness and a clear appearance of impropriety affecting the public’s confidence in her. Some sort of suspension from judicial duties and of her bar license for a period of time would be reasonable I’d think.
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I suspect the judge will not be found guilty of the offense because she exercised what amounted to her right to remain silent by refusing to partake in having a blood alcohol test performed. As a result, the evidence against her will only be circumstantial evidence or testimonial and we all tend to know the few who supposedly rank higher on the trustworthy and political ladder than police…right?
She may also challenge any corroborating evidence by using an exclusionary rule claiming it was obtained at the expense of her constitutional rights.
She still may end up losing her driving ‘privileges’ as part of some kind of plea bargain and be reprimanded by judicial tenure commission and get what amounts to a slap on the wrist.
Should anyone want to know how to beat a similar criminal action should they ever run into it, they’d be wise to watch how judges get away with it. imho
“The question is how treat a judge who has driven under the influence. It raises some tough questions. ”
Treat her like everyone else. Isn’t there something about equal treatment in the eyes of the law, for rule of law to work? If that’s the case, there are no ‘tough questions’ raised.
Seems kind of obvious, but I’m not a lawyer.
Since she was a former prosecutor of dwi cases she knew that the tests are crooked.
We had an Attorney General in Wisconsin refuse to take a breath test. She was caught on a dash camera and there is NO doubt she was hammered. She is seen failing the field tests miserably. She did not do the right thing and resign, but she was voted out of office and her political career ended. The voters took care of the problem.
Maybe she refused to take some “test” because she suspected that the cop already hated her and was planning to rig the test. Until she articulates some reasons here we do not know how to judge the judge. We all watch television to some degree or another and many of us get sick of all the Judge Judys of the world. So we begin have some prejudice against judges. It is similar to the East Coasters who look down on those who hail from Missouri. It is kind of like saying that they are Beyond The Pale. (see topic above) Maybe she never refused to take a test. Maybe she knows the tests are rigged. Maybe she will get fired and have to practice law out there and represent people in divorces and bankruptcies. That, is Beyond The Pale.
One has to be ‘holier than thou’ to be ‘holier than thou’.
While Ms. Astacio certainly has legal rights that need to be upheld, she forfeited the right to sit in judgement of others – a judge needs to be respected and I doubt if many respect her right now.
In my state [ not North Dakota] refusing a valid request to take the test is not a “crime”, but it results in an administrative action to suspend your driver license for six months.
One case the the Supreme Court will hear this term, Birchfield v. N. Dakota, asks whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. This is a case where Scalia’s absence may make the difference, as Scalia was a staunch upholder of 4th Amendment limits (yes, a flaming liberal).