February 13, 2008
Driving While Ability is Impaired is one of the most difficult charges to defend. Generally the defendant will be confronted with nearly irrefutable evidence that he or she had consumed alcohol. When combined with the declaration in People v. Cruz, 48 NY2d 419, 423 NYS2d 625, that "the question in each case is whether, by voluntarily consuming alcohol, [the defendant] has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver[,]" the situation becomes problematic at best.
Just what is needed to justify a conviction for driving while ability is impaired? In People v. Lizzio, (1991, 3rd Dept) 178 AD2d 741, 577 NYS2d 178, the proof was that defendant's eyes were bloodshot, her speech was slurred and she smelled of alcohol. The arresting officers were of the opinion that she was intoxicated and an ambulance volunteer testified that she felt defendant had been drinking. Combined with proof that the defendant's vehicle struck the back of another vehicle in light traffic the Third Department had little trouble affirming the conviction (see also, People v. Domanico, (April 11, 1994, 2nd Dept) - AD2d -, - NYS2d -, 1994 WL 123194).
Does this mean that an acquittal can never be had when the defendant is charged with DWAI? What of a breath test? Will a result greater than .07% in all cases spell conviction?
The answer to this lies in understanding the role of a presumption in a criminal trial.
A presumption is a rule of law, usually based upon human experience, to the effect that given a fact or facts, a certain conclusion will be presumed without specific proof that the condition sought to be proved exists (Leask v. Hoagland, (1912) 205 NY 171, 178, 98 NE 395, reh den 205 NY 594, 98 NE 1106; Wellisch v. John Hancock M.L.I. Co., 293 NY 178, 184, 56 NE2d 540).
Presumptions and inferences are basic evidentiary tools which permit the trier of fact to assume an "ultimate" or "elemental" fact from the existence of a "basic" or "evidentiary" fact (Ulster County Court v. Allen, (1979) 442 US 140, 156, 60 L Ed2d 777, 791, 99 S Ct 2213). As used in criminal law, a presumption is "a rule of law attaching definite probative value to a specific fact" (People v. Hildebrandt, (1954) 308 NY 397, 126 NE 377; Leask v. Hoagland, supra). Every presumption consists of two components; the proven fact and the fact that is to be presumed. The proven fact is the anchoring point. It is the factual point which is proven by the party. The presumed fact is the operation of logic or law which the proponent desires to have drawn.
Application of presumptions in criminal cases can create problems. Inasmuch as they require a finding be made, they are frequently the target of attacks founded upon Fifth and Fourteenth Amendment grounds. Criminal presumptions have, therefore, been afforded strict scrutiny in their operation. Of critical importance, there must be a showing that a logical relationship exists between the fact which has been proven and that which is to be presumed (People v. Leyva, (1975) 38 NY2d 160, 379 NYS2d 30). In the course of examining the propriety of particular presumptions, the courts have called for a "rational connection between the facts which are proved and the one which is to be inferred with the aid of the presumption," (Leyva, supra.) or a substantial assurance that the presumed fact is "more likely than not" to flow from that which was proven at trial (Leary v. United States, (1969) 395 US 6, 36, 23 L Ed2d 57, 82, 89 S Ct 1532; and see, People v. Neiss, (2nd Dept. 1980) 73 AD2d 938, 940‑941, 423 NYS2d 942). In the event that the presumption is the only evidence of guilt, this relationship must be proven beyond a reasonable doubt (Ulster County Court v. Allen, (1979) 442 US 140, 156, 60 L Ed2d 777, 791, 99 S Ct 2213).
In People v. Koch, (1987) 135 Misc2d 352, 515 NYS2d 405, the defendant was struck from behind as he operated his motorcycle. Moments before the impact, the eventual arresting officer passed the defendant and noticed nothing unusual about the manner in which the motorcycle was being operated. On the scene almost immediately, the officer observed signs of impairment which, with the exception of the smell of alcohol, were consistent with a pre-existing injury and the defendant's concern over his passenger/wife who was injured in the accident. Of crucial significance, a Breathalyzer7 test given immediately following the arrest showed a BAC of .09%.
A decision after trial, the court noted the equivocal nature of the physiological signs. Likewise, the court found the accident to be of little help since the accident was not the defendant's fault. Finding that the odor of alcohol was simply evidence that the defendant had consumed an alcoholic beverage, all that remained was the .09% Breathalyzer7 result.
Holding that Ulster County Court v. Allen (supra) controlled, Judge Herman Walz found that although the '1195 presumption that a motorist with a BAC of .09% is impaired will generally survive Allen's "more likely than not analysis," quite a different situation inures when the remaining evidence of impairment is non-existent or ambiguous. To rely exclusively upon the presumption would result in turning what was meant to be a permissive inference into a mandatory presumption from which the trier is not free to depart. Meticulously analyzing Allen, the court placed great significance upon the High Court's declaration that "[the prosecution] may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt." Accordingly, the defendant was found not guilty.
More recently, the NYC Criminal Court reached a contrary result upon a similar set of facts. In People v Ivanyo, NYLJ, August 28, 1992, p. 22, col. 5, the defendant was stopped when a passenger was observed drinking beer. An Intoximeter test showed a BAC of .11% and when informed he'd probably be offered a DWAI he said, "I'll take the impaired."
Thereafter the accusatory instrument was amended downward to charge driving while ability impaired, of which he was convicted. Upon a motion brought pursuant to CPL '330.30, the defendant contended that the VTL '1195 presumptions were unconstitutional. Rejecting the contention, the court noted that the remaining proof, which included bloodshot eyes, a strong odor of an alcoholic beverage on his breath, a flushed face, two admissions of consuming alcohol shortly before driving, an open container of beer, and importantly, a statement which unequivocally evinced consciousness of guilt, were sufficient to satisfy the "more likely than not" standard. While the Ivanyo court disagreed with Koch to the extent that it applied "reasonable doubt" as the connection between the fact proven and that to be presumed, this finding was dicta since Ivanyo, unlike Koch, did not depend solely upon the presumption to prove impairment.
When the accusatory instrument charges Driving While Ability Impaired, pay close attention to the facts. Don't lose sight of the fact that particularly when low or minimal consumption is alleged, most if not all of the commonly observed signs of impairment are equivocal if not caused by factors totally unrelated to alcohol. In our humble opinion Judge Walz's excellent opinion was entirely correct. The presumptions contained in Vehicle and Traffic '1195 do not create a per se offense. In the event that impairment is to be proven solely upon the '1195 presumptions, the People should be prepared to show beyond a reasonable doubt that the result to be proven at trial spells impairment.
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