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Vehicle and Traffic Law § 1192…cont

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.

To Be Cont…

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