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Corrections warranted in the 20-question quiz

February 15, 2013
By DAVE WERNER , Adirondack Daily Enterprise

(Editor's note: Starting Feb. 25, Dave Werner's "Safety on the Roads" will move to Mondays.)

For the past two weeks, the "Did You Know" articles presented 20 questions on vehicle and traffic law and other traffic related subjects. As in all the weekly articles, correctness in the information presented is a high priority.

To this end, all articles are reviewed by several authorities on traffic law and safety before being released. However, sometimes mistakes are caught before the articles are released, and sometimes they are not. In the 20-question quiz, the answers that were in last week's article, contained several errors that need to be addressed.

Question No. 1 asked if a driver were found guilty with driving with a BAC of 0.18 or more for the first time, is it a felony? The published answer was true. However, the key to the answer to this question is "first time," and the correct answer is "false" - it is not a felony, but rather a misdemeanor. Authority for this answer is found in Vehicle & Traffic Law, section 1193(1) (b) (i). If it were the second conviction in the past 10 years, it would be a class E felony [section 1193(4) (i)], and if the person had two prior DWI's over the past 10 years, it would be elevated to a class D felony [section 1193(4) (ii)].

In question No. 11, the answer given to the question "Just holding a portable electronic device in a conspicuous manner while operating a motor vehicle is illegal" was true, but this is not totally correct. V & T Law section 1225-d (4) makes a rebuttable presumption that the person is using a device illegally. It does not mean that just holding the device in a conspicuous manner is all that is required to establish an illegal action. If there is proof that the driver was holding the device conspicuously, it will shift the legal burden to the defendant to prove he was not "using" it as defined in 1225-d (2) (b), which states "Using" shall mean holding a portable electronic device while viewing, talking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, or other electronic data.

I, as author of the weekly Did You Know articles and vice-chairman of the Franklin County Traffic Safety Board, thank Mr. James L. Maswick, Esq., of the law firm of Flink Smith LLC, 2577 Main St., Lake Placid, and also with an office in Albany, for these corrections. He may be reached at: jmaswick@flinksmithlaw.com

Lastly, in question No. 20, the correct answer was listed as "A"; the correct answer should be "B". The explanation that an "area" speed limit cannot be less that 30 mph under V & T Law section1622-2, was answer "B". Thanks to Dorothy Campbell of Westville for picking up this error.

The good news about being made aware of the errors is that the articles are being read by many readers. The bad news is that I must try harder to get it right the first time.

 
 

 

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