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Vehicle and Traffic Law § 1192…cont

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.

In addition, Officer J rendered no opinion whatsoever as to the intoxicated condition of the defendant. Officer J did review the DMV Commissioner’s warnings with the defendant almost two hours after the motor vehicle accident while the defendant was in the hospital holding a bandage to his chin prior to being sutured. The defendant during this time testified that he would not submit to any blood or other chemical tests, and no other tests were offered to the defendant as well. No other evidence was introduced to corroborate any of the testimony of the law enforcement officers. Certainly, the testimony revealed that the defendant was treated at the scene by ambulance personnel and transported by ambulance to Unity Hospital and treated to some degree by Unity Hospital personnel as well. The People did not solicit any testimony from the EMS or fire units at the scene, the ambulance crew who transported the defendant, the personnel at Unity Hospital who treated the defendant, nor did the People offer to introduce any medical records as business records which may have corroborated any allegations that the defendant was driving his vehicle in an intoxicated DWAI condition.

The only evidence that this Court has received is through the Officers’ testimony that there was an odor of alcohol, slurred speech, glassy, watery and bloodshot eyes. The odor of alcohol itself does not overcome the burden to prove beyond a reasonable doubt that the defendant was operating a vehicle in an intoxicated condition, nor the lesser included offense of operating while ability impaired. An individual may have an odor of alcohol but not be intoxicated or impaired within the legal definition as held in People v Miller and Mulvean v Fox.

To Be Cont…

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