Articles Posted in DWI/DUI

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In addition, the People offered no evidence whatsoever that the defendant was in fact following too closely, or had moved from his lane unsafely. This Criminal Court is aware from the testimony solicited that there was at least one other operator and perhaps other passengers involved in this accident in Vehicle 1. On the date of trial, there were no additional witnesses presented by the People, such as lay witnesses, who could have testified that they saw the defendant’s vehicle-that is, Vehicle 2, following Vehicle 1 too closely or that the defendant had moved from his singe lane unsafely causing the motor vehicle accident. It would be pure speculation for the court to conclude that the defendant was in fact following another vehicle more closely than is reasonable and prudent, or had moved from his lane unsafely, as a result of Officer K’s observation of the two vehicles in the left turning lane.

Moreover, with respect to the last violation-that is, Consumption or Possession of Alcoholic Beverage in a Motor Vehicle, there was testimony that there was a 12-ounce Labatt’s Blue beer can in the center console of the defendant’s vehicle, half full. However, the People did not enter any evidence into the record of any kind, that the actual content of the 12-ounce Labatt’s Blue beer can was field tested and confirmed to be an alcoholic beverage that defendant was in possession of, or that the defendant was actively consuming the alcoholic beverage in the vehicle at that point in time of operation.

During his examination, Officer K could not recall whether the can was cold or warm. For the Court to conclude that there was alcohol inside the can and not some other fluid or substance, especially in light of the fact there is no recollection of the 12-ounce can being cold or warm, or for the Court to conclude that the defendant was consuming the 12-ounce can while operating the vehicle, all from the mere fact that a half full can was inside the center console, would be judicial stitchery which this Court is unwilling to perform. Without any further testimony regarding a field test of the content inside the can, or that the defendant was consuming alcohol as he was operating the vehicle, the People have not overcome its burden of proving the charge beyond a reasonable doubt.

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Moreover, the slurred speech, glassy, watery and bloodshot eyes may all be attributable to the nature and extent of the possible injuries received as a result of this accident and the location of the accompanying pain the defendant was experiencing. Lastly, the mere fact of an accident does not give rise to probable cause or even suspicion of the commission of the crime of Driving While Intoxicated as held in People v Graser. As a result, the People have not overcome the burden of proof beyond a reasonable doubt with regard to intoxication as charged.

Moreover, the criminal defendant was specifically charged by way of Uniform Traffic Ticket with violation Vehicle and Traffic Law § 1194(1)(b), that is a refusal to submit to a breath screening test, the preliminary test to determine the presence of alcohol. Vehicle and Traffic Law § 1194(1)(b) makes it very clear that a motorist must submit to a breath screening test if the motorist has (a) been involved in an accident, or (b) committed any other violation of the Vehicle and Traffic Law. See, Vehicle and Traffic Law § 1194(1)(b). In the case at bar, the testimony is clear that the defendant was the operator of Vehicle 2, said vehicle being involved in a motor vehicle accident. However, there was no testimony from either officer that the criminal defendant was asked to submit to the Alco-Sensor, or other breath screening test, to determine the presence of alcohol on the defendant’s breath pursuant to Vehicle and Traffic Law § 1194(1)(b).

The court notes that the defendant was asked by Officer J to submit to a chemical test while at Unity Hospital to determine the presence of alcohol in his blood on three separate occasions. The defendant, however, refused to submit a blood sample on each of the three occasions. Further, the defendant was not charged with violating Vehicle and Traffic Law §1194(2), or any other subdivision there under relating to the chemical test, but was charged with allegedly violating Vehicle and Traffic Law §1194(1)(b), the breath screening test, for which there is no indication in the trial transcript whatsoever that the defendant was offered the preliminary breath test. It appears that the officer intended to charge the violation of §1194(2). However, without a motion to amend the Uniform Traffic Ticket made by the People, the Court must issue a verdict solely on what is charged based on the ruling in People v Graziano. With regard to Vehicle and Traffic Law §1194(1)(b), the People have not met its burden of proof beyond a reasonable doubt with respect to that charge. DWI and DWAI could have been charged.

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Following the testimony of these two (2) law enforcement witnesses, the People rested its case and the defendant exercised his right not to testify in this particular matter.

The criminal court begins its legal analysis with a review of the testimony of these two officers. Initially, neither officer rendered an opinion that the defendant was in an intoxicated condition as subdivision (3) of the charged statute of Vehicle and Traffic Law § 1192 specifically requires. The criminal court notes that Officer K stated that the defendant was driving while under the influence of alcohol, but did not testify that the defendant was operating a vehicle in an intoxicated condition. The basis of Officer K’s indication that the defendant was under the influence of alcohol was the strong odor of alcoholic beverage, slurred speech, glassy watery and bloodshot eyes. In this case, no sobriety tests were completely conducted to determine whether the defendant was operating a motor vehicle in an intoxicated condition, or at the very least operating a motor vehicle while ability impaired, the lesser included offense.

The facts demonstrate that the defendant was asked to complete one field sobriety test, the Horizontal Gaze Nystagmus. It was held in Berkemer v McCarthy that there is no requirement, statutory or otherwise, that a DWI suspect submits to field sobriety tests. In the case at bar, the defendant closed his eyes and did not perform the test in the ambulance. Certainly, this was at a point when the defendant was laying on a backboard with his head and body braced to the board, unable to move, after having been involved in a motor vehicle accident. There was failure on the part of Officer K to testify that no other field sobriety tests were performed because the defendant’s response to the first test made it very clear that he was not going to perform any further tests. However, there is no evidence whatsoever that the defendant was offered any further field sobriety tests, and the defendant may have elected to perform other specific tests if asked. The officer concluded that the defendant would not complete any additional tests so he did not offer any additional tests.

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This is a proceeding wherein the defendant is charged with one count each of Operating a Motor Vehicle While Intoxicated pursuant to VTL §1192.3 and Operating a Motor Vehicle While Impaired pursuant to VTL §1192.1. The defense has made a motion to preclude the People from introducing the result of the SD-2 Intoxilyzer portable breath alcohol test administered to the defendant. A response was filed by the People.

The court grants the defense’s motion to preclude introduction of evidence relating to the portable breath alcohol test.

Relying on the statutory scheme and the Court of Appeals’ ruling in the case of People v. Thomas, the court in the case of People v. Reed held that field test results cannot be introduced as evidence in chief of defendant’s intoxication also similar to the rulings in the cases of People v MacDonald and People v Wright. Pursuant to VTL §1194, a field test serves to determine probable cause for an arrest and it is the chemical breath test that may be admitted at trial as held in the landmark cases of People v Reed, People v Schook, People v Thomas and People v Wright. The ruling in the case of People v Hampe which has been relied upon is inapplicable to the instant facts given that the test in that case involved a chemical test given at the precinct. A field test was not at issue in that proceeding.

The cases of People v Reed and People v Boscic held that the statute differentiates between a preliminary field test and a chemical breath test, which is admissible at trial with the laying of a proper foundation. According to VTL §1194 (2) (a) and (b), the initial breath test and the subsequent chemical test serve different purposes, the first determines if alcohol was consumed and the second determines the level of alcohol consumed. The criminal statute does not provide that a field test is admissible as evidence in chief of defendant’s intoxication and no such language will be read into the statute by this court. That the Intoxilyzer S-D2 is listed as a devise approved to test blood alcohol content does not establish that the devise is admissible at trial to prove the defendant was legally intoxicated.

The court in the case of People v Reed, held that a breath sample shall be collected within two hours of the time of arrest or within two hours of a positive breath alcohol screening test. Further, the court requires that the driver be under continuous observation for 15 minutes prior to a chemical test, that a system purge immediately must precede both the test and analysis of the reference sample and that analysis of a reference standard be made and recorded immediately prior to or following the breath test.

The portable SD-2 Intoxilyzer alcohol breath test is used as a screening tool in the field to determine if the defendant has consumed alcohol as was also done in the cases of People v Reed, People v Schook and People v O’Reilly. The court held in the cases of People v Harper, People v Thomas, Smith v Commissioner of Motor Vehicles and People v Schook that a roadside Alco-Sensor screening test is sufficiently reliable for use in determining the presence of alcohol on a pass/fail basis, if properly administered an Alco-Sensor test can help establish probable cause for the arrest of a DWI suspect.

A portable alcohol screening devise may be used for a field test to determine probable cause for an arrest and its use in determining blood alcohol content is proper for that purpose given its approval, but is not admissible at trial in a DWAI prosecution because the test results are not sufficiently reliable to prove intoxication, i.e., the blood alcohol content reading. As noted in Reed, the Department of Health rules and regulations themselves recognize the difference between preliminary screening test and chemical test in accordance with 10 N.Y.C.R.R. 59.4 (b) (4) (xxiii)).

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The fact that the defendant pled guilty after denying his guilt to the probation officer who prepared the pre-sentence investigation is not automatically a basis for establishing a claim of ineffective assistance of counsel. At the C.P.L 440.10 Hearing the defendant testified on his own behalf. He first argued in his affidavit that he relied on the uncontradicted statement of the arresting officer that he was guilty because of the statement by the officer that “the key is in the ignition”. However, he testified at the hearing to never exploring this issue with his attorney. A review of the court’s file of the 2008 case reveals that the arrest took place at approximately 1:40 A.M. on March 14th.

The defendant advised the probation officer, who prepared the pre-sentence investigation, that on 13 March 2008 between 8:30 P.M. and 10:30 P.M. that he consumed seven drinks, i.e. five beers and two mixed drinks while operating his snowmobile. He then drove his father’s truck to his girlfriend’s house at 903 Meadow Ridge Lane in Webster and fell asleep in said truck outside his girlfriend’s house. It is thus conceivable that despite the colloquy that referenced the arrest date of March 14th, the defendant was admitting to the driving his vehicle in an intoxicated condition while driving his vehicle to the location in question before midnight on March 13th. Certainly, he admitted to driving a truck from his home to that of his girlfriend after drinking seven alcoholic drinks in a two hour period. It is quite possible that said set of facts influenced the advice given by counsel to his client prior to the time of the plea. It is inconceivable that the defendant did not discuss with his attorney what he in fact had to drink on the evening in question. He did refuse to take the breathalyzer test. That would have resulted in the fact of said refusal being entered into evidence at trial in accordance with V.T.L. 1194(2)(f).

The defendant’s original attorney also testified at the C.P.L. 440.10 hearing. He stated that he did not speak to the defendant about raising the defense of operation. However, he did testify that one of the reasons for recommending the plea deal in question was that it satisfied the other criminal charge of Resisting Arrest, P.L. 205.30, which indicates a specific strategy employed by defense counsel on behalf of his client. Certainly that was a reasonable strategic decision for a defense attorney to take.

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After oral argument of the C.P.L. 440.10 motion, the matter was set down for a hearing. At a hearing on a motion pursuant to CPL 440.10, the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion in accordance with C.P.L. 440.30(6) and as was held in People v Tucker, involving a motion to vacate a judgment of conviction based on new evidence pursuant to C.P.L 440.10(1)(g) and People v Tankleff.

The court is now faced with the issue of whether or not the failure of a defense attorney to pursue a possible defense theory in and of itself deny the defendant meaningful representation of counsel.

It is the defendant’s contention that judgment was obtained in violation of a right of his right under the constitution of this state or of the United States pursuant to C.P.L. 440.10(1)(h). In this case, the defense maintains that because the defense attorney, who represented the defendant in 2008, failed to advise the defendant that he could have raised a defense to the charge of Common Law Driving While Intoxicated, V.T.L. 1192(3), to wit: that he had not put his vehicle in operation, as that term is defined by the law, he was denied his right to counsel as guaranteed by the both the United States Constitution and the New York State Constitution.

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On 10 October 2008, the defendant pled guilty to Common Law DWI or Driving While Intoxicated in violation of V.T.L. 1192(3). That plea satisfied the charges of Resisting Arrest, P.L. 205.30 and Failure to Take the Roadside Breath Test, V.T.L. 1194 (1)(B). Subsequent to the arraignment, the defendant appeared with his attorney, who requested an adjournment to submit motions. The motions were subsequently argued and the matter was set down for a probable cause hearing on 3 September 2008. However, instead of a hearing on that date the matter was adjourned to 10 October 2008. On that day a pre-trial conference was conducted in chambers with counsels. At that conference the People made the plea offer which resulted in the aforementioned plea. Prior to taking the defendant’s plea this court advised him of his right to a jury trial, the People’s burden of proof, and of the fact that the verdict of the six person jury must be unanimous.

The defendant was further advised that his lawyer could cross-examine the People’s witnesses, that he could present his own witnesses, and that he could testify, but if he chose not to do so that fact could not be used against him. The defendant then proceeded to waive his right to a trial. At that time the assistant district attorney engaged in a factual dialogue with the defendant wherein he asked if the defendant operated a motor vehicle under the influence of alcohol DUI on 14 March 2008 to which defendant answered in the affirmative. The defendant also admitted to drinking a “six-pack” upon further inquiry by the prosecutor.

Thereafter, the case was adjourned for return of a pre-sentence investigation and sentencing to 17 December 2008. After reviewing the pre-sentence investigation, wherein the defendant claimed he was unjustly arrested, the defendant was sentenced to a one year revocation of his driver’s license, the New York State Drinking Drivers Program, one Victim Impact Panel, three years probation, three work weekends a $500.00 fine and the required surcharge of $190.00. Despite the fact that the sentencing was about five weeks after his plea, the defendant again failed at that time to deny having operated his vehicle while intoxicated.

Again, on 23 December 2010, the defendant was arrested and charged with Per Se, Driving While Intoxicated, V.T.L. 1192(2), Common Law Driving While Intoxicated, V.T.L. 1192(3) and Excessive Tinted Glass, V.T.L. 375(12)(a)(b)(2). Since the defendant was convicted of Common Law Driving While Intoxicated V.T.L. 1192(3) in 2008, the most recent charge of Common Law Driving While Intoxicated, was charged as a felony pursuant to V.T.L. 1193(1)(c)(i). The defendant retained his current attorney, who filed a motion, pursuant to C.P.L. 440.10(1)(h) to vacate the previous driving while intoxicated conviction.

C.P.L. 440.10(1)(h) states as follows: “At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.” The defendant argues that his conviction should be vacated because he was not advised by his attorney that he could have raised the defense of non-operation. Thus, he was alleging that the ineffective assistance of counsel resulted in his decision to plead guilty in October of 2008 to common law driving while intoxicated, which effectively denied him his right to an attorney.

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Having been notified by the arresting officer that PV had refused to take any alcohol tests at the time of the accident, on 18 February 2011 and 23 March 2011, Progressive wrote to the police requesting a copy of PV’s condition report or supporting deposition-bill of particulars as is required when tickets are issued for alcohol involvement. The police told Progressive that there was an ongoing DWI or Driving While Intoxicated case against PV, that the case was going to trial, and that they would not be able to provide the requested documentation until the conclusion of the trial.

The Hospital thereafter moved for summary judgment based upon Progressive’s failure to either pay the Hospital’s no-fault benefits or deny its claim within 30 days as required by Insurance Law § 5106(a), which states that: “Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained.”

In the case at bar, the Hospital established its prima facie entitlement to judgment as matter of law by demonstrating that the necessary billing forms were mailed to and received by Progressive and that payment of the no-fault benefits was overdue based on the ruling in New York & Presbyterian Hosp. v American Transit Insurance Co. Specifically, the Hospital submitted, in support of its motion, the requisite no-fault billing forms, the assignment of benefits form, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and the affidavit of PT, a biller and account representative for the Hospital, indicating that Progressive failed to either pay the bill or issue a timely denial of claim form based on the rulings in Westchester Medical Ctr. v Progressive Casualty Insurance Co. and Hospital for Joint Diseases v New York Central Mutual Fire Insurance Co.

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This proceeding involves a motion by Westchester Medical Center for summary judgment upon Progressive Casualty Insurance Company’s failure to either pay the Hospital’s no-fault benefits or deny its claim within 30 days as required by Insurance Law § 5106(a).

The court denies the motion.

The antecedent facts are as follows:

On 31 October 2010, PV was involved in an accident for which he received medical treatment at Westchester Medical Center. PV was insured pursuant to an automobile liability insurance policy with Progressive Casualty Insurance Company.

On 2 November 2010, the date when PV was discharged, PV assigned his rights to no-fault benefits to the Hospital. On 4 November 2010, pursuant to Progressive’s investigation of no-fault benefits eligibility, Progressive requested certified copies of PV’s admission history, discharge summary, radiology and pathology reports, laboratory test results, consult reports, nurses’ notes, emergency room records, and specifically blood alcohol/drug results and any serum toxicology test results.

On 10 November 2010 a no-fault billing in the amount of $ 9,333.48 was mailed to Progressive, certified mail, return receipt requested. Progressive received the bill on 12 November 2010.

On 15 November 2010, Progressive requested an authorization from PV to obtain his blood alcohol level from the New York State Police and also requested from the police information regarding PV’s blood alcohol results at the time of the accident. Prior to that time, Progressive had obtained a copy of the police report which indicated that PV was arrested for DWI or Driving While Intoxicated.

On 26 November 2010, Progressive sent a verification request delaying the payment of benefits pending the receipt of PV’s authorizations, blood and alcohol levels, supporting deposition/ DWI bill of particulars and emergency room records including all laboratory tests and/or the police accident report.

On 6 December 2010, the Hospital mailed the complete medical records, including all laboratory and toxicology reports, to Progressive. This mailing, which was received by Progressive on 8 December 2010, also included a copy of the assignment of benefits.
On 29 December 2010, Progressive sent another “Verification Request: Follow-up Notice” seeking that which was sought in the 26 November 2010 verification request.

On 10 January 2011, Progressive acknowledged receipt of the hospital records but further requested from the Hospital the results of blood alcohol testing or a certified letter from the Hospital indicating that the testing was never performed.

By letter dated 4 February 2011, PK, a biller and account representative for Hospital Receivable Systems, an entity which represents the Hospital, informed Progressive that it had mailed the complete medical records and that the Hospital did not test for blood alcohol and drugs and, thus, did not have any serum toxicology test results. This letter was not certified.

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People v. Romano
Court Discusses Whether a Defendant can be Convicted on a Defective Information
The defendant, in an information was charged with Attempted Criminal Contempt in Second Degree and Aggravated Harassment. The alleged crimes were in violation of a protection order regarding a domestic dispute involving the defendant and the mother of his child, who was the complainant. The defendant requested the dismissal of the charge of Attempted Criminal Contempt in the Second Degree. The defendant contended that the charge was flawed within the meaning of the Criminal Procedure Law (100.15) as a vital component of the crime was not fulfilled.

The Penal Law (§ 215.50(3) for DUI provides the vital components of Criminal Contempt in the Second Degree where it states that a person must intentionally disobey or resist a legal process or a court order except where there is labor dispute as defined in section 753(a) of the Judiciary Law. The term labor dispute refers to disagreement regarding the terms or conditions of employment, or concerning the association or representation of persons in fixing, maintaining, negotiating, changing or in search of arranging terms or conditions of employment, or regarding employment relations, or any other disagreement involving the individual interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee. According to the defendant, neither the accusatory section nor the factual part of the information alleged that this case did not concern or develop from a labor dispute, a crucial element of the offense that the prosecution was obligated to plead and prove. Where legislation defines a crime that comprises of an exception, the exception would be included in the element of the offense; but when the exception is created in separate legislation, the defendant has the responsibility of raising the exception in his defense, either by favorable defense or under the general issue. Statutory exception for cases that developed from a labor disputes was a part of crime of Criminal Contempt in Second-Degree, and thus count of accusatory instrument that charged the defendant with Criminal contempt in Second Degree for disobeying protective order in favor of child’s mother, without indicating whether case was result of labor dispute, was facially insufficient. DWAI was not involved.

The definition of a labor dispute is board and it was arguable that the relevant section of the Judiciary Law covered household members working in a business. However, this argument was flowed as the legislature could not have intended the section to be applied to prevent abuse from a family member. The legislative history of the statute and the literal interpretation of statute showed that the labor law language is a component of the crime. However, a dismissal of the criminal contempt count was inappropriate as there could be an amendment. The Criminal Procedure Law provides for the amendment to an information or a count where there is a defect or irregularity that can be cured. Since the defective information was curable, the court ordered that the defendant’s motion to dismiss the charge of Criminal Contempt, not DWI, in the Second Degree is stayed for 15 days. Provided that the District Attorney amended the information, then the motion to dismiss the information would be denied. Where there was a failure to amend or supersede the information within 15 days of the decision then the defendant’s motion would be granted.
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