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Fiandach & Fiandach (Rochester NY)

585.244.8910

Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
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Proving Impairment

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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