For drivers in New York State beginning today, April 10, 2014, be careful if you are a hand held cell phone user on the highways and local streets. Governor Andrew Cuomo announced the start of “Operation Hang Up”, by which officers will on the lookout for the next week for drivers who violate the cell phone law through texting or speaking on a cell phone while driving. Gov. Cuomo stated: “The message is clear: distracted driving is deadly and will not be tolerated on New York roads.”

State troopers will be in marked and unmarked vehicles seeking violators of the hand held cell phone ban. Further, officers will be in SUV’s that are modified to sit a greater height, so that officers can see in to vehicles for operators who are trying to text next to their seats so that they are not discovered.

The fine for a cell phone violation under New York’s Vehicle & Traffic Law is now 5 points, which is almost half of the 11 points in eighteen months that results in a suspended license. The fine for a first offense is $150.00. A third offense in 18 months results in a fine of $500.00. Beginning on November 1 of this year, drivers with a learner’s permit, junior or probationary license will be assessed a 120 day suspension of their privileges for a first texting or cell phone infraction. A second violation will lead to a one year suspension.

The more stringent enforcement of the hand held cell phone ban has resulted in an 82% increase in texting while driving tickets in New York City 2013 as compared to 2012. Outside of the city, the increase was even more substantial, at 89% from 2012 to 2013. In almost one half of New York’s 62 counties, (26), the amount of texting tickets issued more than doubled from 2012 to 2013. Locally, this was true in Westchester, Rockland and Dutchess counties. Statewide, there were 55,000 texting while driving tickets issued in 2013, increased from approximately 30,000 in 2012.

The National Highway Traffic Safety Administration (NHTSA) has reported that in 2012, 3,328 people were killed and approximately 421,000 injured in motor vehicle accidents involving distracted drivers.

The New York State Police issued a statement that the State Police are “committed to keeping our highways safe for all motorists…this campaign is about protecting travelers from preventable injuries and property damage caused by distracted drivers using electronic devices.”

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There are various types of distractions which can lead to a distracted driving accident, and traffic charges which could result in the loss of driving privileges. According to the National Highway Traffic Safety Administration (NHTSA), the number of occupants of vehicles killed in distraction related crashes decreased slightly from 3360 in 2011 to 3,328 in 2012. However, there was an estimated increase in injuries from distracted driving crashes from 387,000 in 2011 to 421,000 in 2012. Distracted driving can be as a result of:

Use of a cell phone or smart phone for a call or email;
Using a navigation system in the vehicle;
Adjusting a radio, CD player or other stereo equipment such as an Ipod;
Speaking with passengers in the vehicle;
Attempting to discipline children in the car;
Reading a map or other material;
Personal grooming;

Eating or drinking.

Texting is considered the most substantial distraction, as it requires visual, manual and cognitive attention from the operator. 10% of drivers under the age of 20 involved in fatal accidents were distracted at the time of the crash according to the NHTSA. Operators under the age of 20 have the greatest proportion of distracted drivers. Drivers in their 20’s comprise slightly more than 25% of the distracted drivers in fatal crashes.

In New York State, under the Vehicle & Traffic Law, texting while driving is now a primary violation, which means that an officer can issue a ticket for this infraction without first determining that the operator has also committed another violation, such as speeding, following too closely, or changing lanes unsafely. Additionally, texting infractions have been increased from an original 2 points on the driver’s license to 5 points, which is almost half way to a suspended license, which occurs when the driver is assessed points in an 18 month period.

Here is an alarming statistic for those who test while driving: The average period of time the driver’s eyes leave the road to text is 5 seconds. If the vehicle is travelling at 55 m.p.h., it would cover an entire football field, 300 feet, with the driver not looking at the road! In a study conducted by the NHTSA in 2006, using in vehicle instrumentation, approximately 80% of crashes and 65% of near crashes occurred with the operator of the car looking away from the road just prior to the event. The Safe Transportation Research Education Center at UC Berkeley found that the percentage of distracted driving by electronic devices increased from 4.2% in 2011 to 6.2 % in 2012. Drivers ages 16-24 were significantly more likely than other age groups to drive while distracted at 11.4%.

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2013 saw a huge increase in texting while driving tickets in New York State. There has been a contemporaneous increase in enforcement and the penalties for this traffic infraction since the law was first instituted in 2009. This past year, there were 82% more tickets issued in New York City, and an 89% increase in the counties outside of the City. In almost half of New York’s 62 counties, (26), texting tickets more than doubled. Statewide, police wrote approximately 55,000 texting while driving tickets in 2013, compared with 30,000 in 2012.

In specific counties, Westchester County police issued 2,000 texting infractions last year, which was the most other than Suffolk County outside of New York City. Monroe County came in 3rd at almost 2,000, which was 77% more than 2012, and in fourth place was Erie County. In Dutchess County, the number of texting tickets increased more than 50% from 419 to 854 from 2012 to 2013, and in Rockland County, the increase was even greater, jumping from 193 in 2012 to 494 in 2013. In order to assist in enforcement, police are utilizing taller SUV’s and watching traffic from higher vantage points so that they can look down on drivers who they suspect of texting.

Interestingly, as texting tickets have soared, the number of tickets written for using a cellphone while driving has decreased in each of the last five years. In 2009, police issued 342,000 hand held cellphone tickets, and that number was at 207,000 in 2013, reduced from 217,000 the year before.

Since 2009, when the law first went into effect, the penalties for texting infractions were much less stringent. To begin with, texting while driving was a “secondary offense”, which meant to charge an operator with the offense, the police had to determine that he or she had committed another infraction such as speeding or following too closely. In 2011, the law was amended by the New York State legislature to change texting while driving to a primary offense, and the points imposed were increased from 2 to 3. In 2013, the fines were increased, and the points increased to five.

According to the New York State Department of Motor Vehicles, the conviction rate for texting offenses in 2012 was 66%, and the conviction rate for handheld cellphone usage was 73%. The Cohen’s Children’s Center on Long Island reported last spring that more than 3,000 teenage drivers are killed each year as a result of testing while driving. Due to the epidemic of texting while driving, particularly with younger drivers, Governor Cuomo is proposing that drivers under the age of 21 lose their licenses for one year (presently it is six months) if they are convicted of texting while driving. If that proposal is implemented by the NYS legislature, New York would have the strongest texting while driving penalties in the United States.

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Justin Bieber, the seemingly troubled and wayward teen pop idol, was arrested on January 23, 2014 by Miami Beach police on charges of DWI, resisting arrest and driving without a valid license. Bieber was charged with drag racing a $250,000 Lamborghini along a Miami roadway at approximately 60 miles per hour in a 30 mile per hour zone. Each of these charges are misdemeanors under Florida law.

When Bieber was apprehended by Miami Beach police at approximately 4:00 AM on January 23rd, he purportedly failed field sobriety tests and became angered when the police attempted to search him. It has been reported that Bieber exclaimed: “I ain’t got no f***ing weapons…Why do you have to search me? What the f*** is this about?”

In Florida, as in most states in the United States, a blood alcohol concentration (BAC) of 0.08% or higher is the standard for legal intoxication. Reports are that Bieber’s BAC was considerably lower than the level for legal intoxication at approximately 0.02%. However, under Florida law, if the driver is under the age of 21, the standard for intoxication is 0.02%. Thus, Bieber may have been legally intoxicated at the time he was operating the Lamborghini. Additionally, the seemingly troubled pop singer allegedly admitted to police that he had also used marijuana and prescription medications that evening before driving, probably not the smartest thing the “Biebs” ever did in his rather rocky recent past.

Bieber was also charged with the misdemeanor of resisting arrest as he failed to keep his hands on the vehicle while the arresting officer was conducting a patdown for weapons. The arrest report notes that Bieber had bloodshot eyes, flushed face (maybe from embarrassment?) and an odor of alcohol on his breath.

One of the few intelligent moves Bieber made (or at least his management team) was to retain Roy Black as his criminal defense lawyer, who is known as the attorney who was able to obtain an acquittal for Kennedy nephew William Kennedy Smith on Florida rape charges in 1991.

In addition to facing the music for the misdemeanor charges of DUI, resisting arrest and driving without a valid driver’s license, the man whose followers are known as “Beliebers” has another significant problem which must be addressed, and probably by a different hired gun. Bieber is a citizen of Canada, and is in the United States on an O-1 work visa, which is granted to foreigners with “extraordinary ability in the sciences, arts, education, business or athletics.” With Bieber’s recent past of alleged egg throwing, drag racing, urinating in public and spitting, and a question mark as which of the above categories he fits into—(is what the Biebs puts out “extraordinary art”?), he certainly has done absolutely nothing in the recent past to convince any administrative judge in the Department of Homeland Security that it is in the interests of the United States to grant Bieber continued residence in this country. If I were advising Bieber, my advice would be simple: get into rehab for whatever is troubling you, and fast.

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In the aftermath of the tragic Metro North derailment of December 1st which killed 4 passengers and injured more than 70, some critically, the Bronx District Attorney’s office is considering bringing criminal charges against the train engineer, William Rockefeller. The reported evidence indicates that at the time of the accident, the 5:54 AM southbound train was travelling at 82 miles per hour entering a sharp curve just north of the Spuyten Duyvil station, where the speed limit is 30 miles per hour. Rockefeller’s attorney claims that he “dozed off” just prior to the derailment and that this was the reason for his failure to apply the brakes until a few seconds before the accident. Mr. Rockefeller then attempted the emergency measure of “dropping the brakes”, meaning that he pressed on the brakes with full force, but it was too late.

To prove a criminal case against Rockefeller, the D.A will have a difficult hurdle. Prosecutors must prove that the train engineer either:
1. Intentionally caused the crash;
2. Knowingly caused the crash;
3. Recklessly caused the crash; or
4. Was criminally negligent in his actions that early Sunday morning two weeks ago.

In my opinion, the D.A. will not have any chance of proving, nor are they likely to attempt to do so, that Rockefeller intentionally or knowingly caused the accident. By all accounts, Mr. Rockefeller was an experienced engineer who enjoyed his work. Similarly, I believe prosecutors will not try to prove that Rockefeller was reckless on that fateful December morning.

The only possible charge that the D.A. may pursue is “criminally negligent homicide.” However, even this charge will be fraught with difficulty for the prosecution. In order to prove criminally negligent homicide, the D.A. must prove that Mr. Rockefeller exhibited a reckless or indifferent disregard for the rights of others, and failed to perceive a substantial and unjustifiable risk that his actions constituted a gross deviation from the standard of care that a reasonable person would use in the situation.

Last year, the Bronx D.A. was unsuccessful in prosecuting Ophadell Williams, who was a 41 year old bus driver charged with manslaughter and criminally negligent homicide in a fatal bus accident on March 12, 2011 on I-95 in the Bronx in which 15 were killed and many others injured. Prosecutors attempted to prove that Williams was so sleep deprived that he should be held criminally responsible for his conduct in operating the bus in that condition. This theory of “driving while drowsy” has never been established in New York State, and the prosecution would be attempting a similar argument in prosecuting Rockefeller. The Bronx jury rejected the argument and acquitted Mr. Williams in December of 2012 of all but one of 55 charges against him, despite the fact that he had a rather extensive criminal record in addition to the horrific fatalities and injuries Mr. Williams caused in the bus accident.

Ultimately, I believe the Bronx D.A. will decline to prosecute Mr. Rockefeller as their experience in the Williams case was instructive and cautionary—trials are costly and time consuming, and they must utilize limited personnel and resources judiciously.

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On November 19, 2013, New York’s highest Court, the Court of Appeals, in the case of People of the State of New York v Richard Diaz, ruled that in felony criminal cases involving immigrant defendants, defendants must be advised that they face removal (previously known as deportation) if they plead guilty to the charge (generally any sentence which potentially could result in the defendant being imprisoned for at least one year or more in jail will result in removal when the sentence is served). In the Diaz action, Richard Diaz was a legal permanent resident from the Dominican Republic. He was arrested in October of 2006 when he and another man in a taxicab were found to have a two pound brick of cocaine during the course of a traffic stop. Mr. Diaz pled guilty to a reduced drug possession charge in exchange for a 2½ year prison sentence, but apparently Mr. Diaz’ lawyer and the Court failed to advise him that a plea to the drug possession charge would result in his removal from the United States when his sentence was completed.

When Mr. Diaz was released from jail, he was immediately picked up by “ICE”, the Immigration and Customs Enforcement unit, to remove him from the United States. In a 5-2 decision, written for the majority by Judge Sheila Abdus-Salaam, the Court overturned a previous decision from 1995 in which it determined then that a defendant did not need to be warned of deportation because it was a “collateral consequence” of a guilty plea. Apparently, the driving factor behind the Court’s decision in Diaz was the changing times since the mid-1990’s, when 37,000 undocumented people were removed from the United States. Conversely, in 2011, 188,000 non-citizens were deported as the immigration laws have been more strictly enforced.

In her decision, Judge Abdus-Salaam stated that: “deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to defendant as a matter of fundamental fairness.” Judge Abdus-Salaam also mentioned that defendants who take plea bargains lose their jobs, and are sent back to countries they haven’t lived in since their birth, with no family or friends there.

The U.S. Supreme Court ruled in the Padilla v. Kentucky (2010) that defense lawyers have a duty to inform their clients that they face removal before they agree to plead guilty to a felony. In practice, often the lower Court judges ignore this directive and in my experience, many defense attorneys either are not aware of this consequence or simply forget to consider it. In Mr. Diaz’s case, along with two others that were decided contemporaneously, the Court ruled that the defendants have a right to withdraw their guilty pleas, as their due process rights were violated. However, Mr. Diaz and the other defendants must prove that if they had been warned of the possibility of removal, they would have insisted on going to trial and not pleading guilty. Chances are very strong that Mr. Diaz will claim that he would have gone to trial and he will be allowed to withdraw his guilty plea.

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Effective this past Monday, November 4, 2013, New York’s Vehicle & Traffic Law has been amended to toughen the penalties on truck drivers and other commercial drivers who use their cell phones while driving. These license holders will no longer be permitted to use a mobile device to make a call, text, or send an email, even if the driver is temporarily stopped in traffic, at a stop sign, or traffic light, of for any other reason. The new texting law applies to intrastate travel in the State of New York. It states that “using” a mobile device is defined as when a person “presses more than a single button to dial or answer the phone.”
The law is different for non-commercial drivers, who can only be flagged for a violation of the cell phone and texting laws if their vehicle is in motion.

The penalties for a violation of the modified section of the Vehicle & Traffic law are substantial, including a mandatory suspension of the commercial driver’s license!

In July of this year, Governor Cuomo signed into law an increase in the points imposed for texting while driving infractions from 3 points to 5 points, which is almost half of the 11 points on a license resulting in a suspension. The July amendment also added texting while driving to list of violations which can result in a 60 day suspension for probationary and junior licenses.

In 2011, texting while driving was made a primary violation by the New York State legislature, (meaning that a police officer could issue a ticket for a texting infraction without another moving violation such as speeding or following too closely). As a result of that change, there was a huge increase in texting while driving tickets around New York State, from 30,000 in 2012 to approximately 43,000 thus far in 2013. The 43,000 issued this year include 24,000 in the City of New York and 19,000 in the remainder of New York State.

In Westchester County, there were 975 texting tickets issued in 2012 and 1,570 to date in 2013. Other counties such as Dutchess have almost doubled texting while driving tickets this year, going from 419 last year to 726 at present in 2013.

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After approximately one year of negotiations, Penn State announced last week that it will pay approximately 60 million dollars to settle the cases of 26 sexual abuse victims of Jerry Sandusky. In June of 2012, the former Penn State assistant football coach was convicted by a Pennsylvania jury of 45 of 48 counts of sexual abuse. The conviction was after a several week long trial with testimony from 8 of Sandusky’s victims, who described in detail the abuse, including fondling, oral sex, anal rape and psychological manipulation.

The 69 year old Sandusky is serving a 30-60 year sentence as a result of his conviction last June. The settlement will apparently be paid from liability insurance policies, not from Pennsylvania taxpayers, donations or tuition funds. It will resolve the cases of 26 victims, leaving another six whose cases are still in negotiation with the victims’ attorneys and a few that the university’s counsel are questioning the legitimacy of.

The Sandusky scandal, which terminated the career of legendary football coach Joe Paterno for failing to report what he allegedly knew of Sandusky’s transgressions, also includes three university officials who are charged with covering up the scandal. They are former Penn State president Graham Spanier, retired vice president Gary Schultz, and retired athletic director Tim Curley, who have each denied the allegations against them. Spanier, Schultz, and Curley each await trial on the charges against them, which has not been scheduled to date. In my opinion, based upon the reported evidence, they have an uphill battle to avoid convictions, as it appears that their main concerns were to determine how best to avoid damaging the reputation of Penn State University and maintaining enrollment, not stopping a sexual predator.

The settlements were negotiated by the law firm of Kenneth Feinberg, who is well known for his role as a mediator distributing funds in the 9/11 “Victim Compensation Fund” and as a special master in the Agent Orange litigation. As expected, each victim will be required to execute a confidentiality agreement, prohibiting them and their attorneys from disclosing the amounts of the settlements and in all likelihood, further commenting on anything to do with Jerry Sandusky or Penn State’s employment of Sandusky.

Penn State is also under investigation for potential violations of the Clery Act. The Clery Act was named after Jeanne Clery, a 19 year old Lehigh University student who was raped and murdered by another student in her residence hall in 1986. The significant discretion afforded to local campus police in determining whether to refer cases to police and prosecutors instead of school authorities has resulted in some tragic cases in universities throughout the U.S., and the implementation of the Clery Act in 1990. Colleges and universities must give prompt warnings of crimes committed on their campuses which could pose a threat to the safety of students and school employees. A violation of the Clery Act can result in fines of up to $27,000 for each violation.

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The light is yellow and you are late for work. The boss is rather an unforgiving type, so you blow through the light, and the red and white lights begin flashing. “Pull over”, you hear. Now you are looking at a certain traffic ticket, right? Maybe not.

The first thing you should do is pull over, put your hazard lights on, and retrieve your driver’s license and registration. The officer approaches the car, and you roll down your window. Here is where people make their mistake. When Officer XYZ asks you “do you know why I stopped you?”, do not respond with “No, I have no idea.” I have spoken with many police officers over the years (including a family member) and this is a common theme. If you have any chance of an officer excusing the infraction, it is only a possibility if you are honest in this response. Something like this might work—“Yes officer, I am very sorry. The highway was a real mess today, I’m 15 minutes late for work, and my boss is not going to be happy.” You haven’t specifically stated that you went through the light, but, you are also not insulting the officer’s intelligence. Potentially, this will result in a warning to be safer in the future, and no ticket.

If you do get the ticket, and want to plead it down to reduce the points and or fines, and if you intend to do this yourself, request a supporting deposition. (Presently, this is often provided on a large computer print out when the ticket is issued). The supporting deposition is a document prepared by the officer which provides details of the alleged infraction—where the officer was located, what direction your car was going in, what the weather conditions were, what he/she observed, and in the case of speeding infractions, how the officer determined the speed—laser, radar or other means such as “pacing” your car.

If the officer does not prepare a supporting deposition, and you appear for the pre-trial conference, this is a basis for a dismissal of the traffic violation. Obviously, this method only works in the more old fashioned Courts where they still issue tickets which do not contain the supporting deposition. If the officer does not show up for the Court appearance, depending on the particular Court, you may move for a dismissal for “failure to prosecute.” However, in Traffic Violation Bureau Courts in the five boroughs of New York City, this will in all likelihood not be successful (unless the non-appearance by the officer is repeated) and the Court will schedule a new date. The New York City Courts are also notorious for no plea bargaining, and cases proceeding directly to trial with limited cross examination of the police officer who issued the ticket.

If you retain an attorney, in my experience, it is advisable not to request a supporting deposition, as this requires the officer to do more work and reduces the chances for obtaining the maximum possible reduction for that ticket. With regard to possible pleas for particular violations, clients should be aware that certain tickets, such as speeding in a construction zone, or in a school zone, are much more difficult to get reduced due to judges’ reluctance to countenance what they consider to be reckless behavior. Thus, a client seeking a reduction to a seat belt violation on a speeding in a construction zone infraction (usually at least 6 points, more than halfway to a suspended license at 11 points) has to accept that this may be exceedingly difficult to achieve. Driver’s abstracts can sometimes be quite helpful, in that if the driver has a pristine driving record, this can go a long way to a significant reduction.

In some jurisdictions, there are several judges, and it is sometimes possible to adjourn a case to a date when a more lenient jurist is on the bench, adding to the odds of a better resolution.

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This past Friday, July 26, 2013, was a celebration for Brian Bond, 35, and Lindsey Stewart, 30, childhood sweethearts who were due to be married on August 10, 2013. But celebration turned to disaster quickly. After dinner at Pier 701 in Piermont, NY, the couple, along with best man Mark Lennon and two other friends, joined skipper Jojo John, 35 on his 19 foot powerboat for a nighttime ride across the Hudson River from Piermont to Tarrytown.

As is well known by now, the Tappan Zee Bridge is in the very beginning stages of replacement, and as part of that massive 3.9 billion dollar project, barges containing construction supplies have been placed on the north and south sides of the bridge. Tragically, at 10:40 PM on the evening of July 26th, which by all accounts was a clear night, the boat skippered by Mr. John struck a construction barge on the south side of the bridge, tossing Ms. Stewart and Mr. Lennon off the boat and severely injuring the remaining four passengers on the boat, including the driver Mr. John. Ms. Stewart and Mr. Lennon’s bodies were found in the Hudson River, tragically dead at the age of 30. But what caused the accident?

Immediately after the accident, newspapers were quick to call the boat ride a “booze cruise”, and editorials in local papers such as the Journal News immediately made the assumption that alcohol was to blame. However, witnesses have asserted that little alcohol was consumed by the group before they entered the boat that fateful evening, and by all accounts they were all hard working people with jobs to go to the next day.

Blood was taken from Mr. John, he has been charged with vehicular manslaughter and vehicular assault, and while recuperating at Nyack Hospital, he has been handcuffed to his bed. But shouldn’t we be waiting until definitive results have been disclosed by the State Police laboratory before we determine that Mr. John is criminally responsible for this tragedy? The legal limit for intoxication is 0.08% in New York State. What if tests reveal that Mr. John’s BAC (blood alcohol concentration) was 0.02, or 0.04, the latter of which could be the equivalent of two beers?

It is known that prior to the accident, at least one citizen, Michael Hortens, a Nyack resident, had contacted a Nyack official, Mayor Jen Laird-White, to express concern that the barges were inadequately lit, and that poor lighting would lead to a tragic accident with all the boat traffic at night during the summer on the Hudson River. Ms. Laird-White apparently did forward the letter to bridge construction officials. Hortens noted “[The barges] just seemed so potentially dangerous that I had to say something.” Hortens, a Rockland County resident and owner of an 18 foot sailboat, noted that “it was an accident waiting to happen…just a matter of time.” He declared, “to me, it’s obvious that people should have been warned or there should have been adequate lighting….my thinking is that [the barges] should be lit up like Christmas trees.” No one ever responded to Mr. Hortens from the State or local governments.

Naturally, after the accident, the State has added dozens of extra LED solar lights and battery powered lights to the barges. An official for the New York State Thruway Authority claimed that the barges met all Coast Guard requirements, which mandate that the barges must be able to be seen from one nautical mile, the equivalent of 1.15 miles or 6,076 feet.

John Schumacher, a friend of Mr. Bond and Ms. Stewart, who survived the terrible accident with serious injuries including a fractured jaw, has stated definitively that no one on the boat ever saw the barge before the accident. However, the Rockland D.A., Thomas Zugibe, seems set on presenting a criminal case to a Rockland County grand jury when Mr. John recovers sufficiently to appear in Court, possibly in September. But the question persists, is this a case of criminal conduct by Mr. John, or a case of avoidable negligence attributable to the State of New York in failing to ensure that the barges were well lit? If Mr. John was in fact intoxicated, he must properly face prosecution. However, perhaps Mr. Zugibe, and local media, should await laboratory tests and more investigation before blaming Mr. John and purported alcohol involvement for this tragedy—it is only fair.

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