A Century of DWI A Brief Review of the Last Millennium
February 13, 2008
When one looks at the history of crime, we realize that alcohol related operating offenses are unique. A product of the 20th century, they combine, somewhat ironically, one of man's oldest art forms; the production of alcoholic beverages[i] with state of the art technology. Moreover, there exists a philosophical thread that runs through the entire period of enforcement, which commences with the temperance movement, and, to a large extent, mirrors society's modern views of morality, civil liberties and the punishment of criminal acts generally.
Enacted in 1910, former Highway Law ' 290[ii] entitled, Punishment for Operating a Motor Vehicle in an Intoxicated Condition,is the first enactment aimed at the ramifications of combining these two technologies. Although it was the first attempt to curb the fledgling ill, it bore a striking similarity to present day Vehicle and Traffic Law ' 1192(3). The statute provided that the first conviction constitutes a misdemeanor and the second conviction, a felony, irrespective of how long it occurred after the first. The enactment also contained a provision for immediate suspension of the operator's license if convicted and no appeal was taken. The seminal act set no statutory period for the length of such suspension, but merely required that the privilege shall not be restored unless the Secretary of State, after an investigation or upon a hearing, decides to reissue or issue such license or certificate. Amidst today's get tough policy, it is interesting to note that the primeval criminal penalties were severe; very severe. While a misdemeanor was punished by a minimum of a one year term, the period of incarceration for a felony was five years. Later legislation decreased both terms to sixty days and two years respectively.[iii]
Of note is that the 1919 act, like that presently in place, furnished no definition of the term intoxication.[iv] Accordingly, it was this lack of statutory guidance which ultimately led to the 1919 landmark decision, People v Weaver.[v]
Resembling the common law case practitioners see every day, the facts underlying Weaver merit some discussion. In Weaver, the defendant's vehicle struck that of another motorist as the two were rounding a curve. The collision resulted in the death of the operator of the other motor vehicle. At trial, the proof showed that the defendant drank two glasses of Eagle beer in a saloon in Utica and thereafter proceeded, with his companions, to a hotel "in the country," where they remained until about 12 o'clock. Proof at trial showed that, at this second location, each member of the party drank three bottles of Budweiser beer. The defendant further proved that the beer consumed by him contained 2.17 ounces of alcohol.
Of some interest in Weaver, the victim was presumed to be intoxicated and was operating his vehicle at midnight, without the benefit of headlights.[vi]
Although, at trial, the evidence tended to show "[no] action inconsistent with sobriety." The prosecution, by producing extensive, albeit inconsistent, evidence about speed, direction, and general operation of the Weaver vehicle, contended that the defendant operated his automobile recklessly on the highway and that this was some evidence of intoxication.
While noting "[i]t is common knowledge that sober men too frequently drive their automobiles at a rapid speed, and that they deviate from the extreme right of the highway and sometimes experience collisions," the Third Department nevertheless recognized "[I]ntoxication cannot legitimately be inferred from those circumstances alone.[vii]
Criticizing the trial court's charge that permitted a verdict of guilty upon a finding that operation was "affected by drink to any extent, even though his judgment and mental and physical faculties were entirely unimpaired and his ability to operate the automobile entirely unaffected," the rule adopted in Weaver bears but cosmetic differences from the modern benchmark established exactly sixty years later in People v Cruz:[viii]
Hence, for the purposes of the statute under which defendant is convicted, he is intoxicated when he has imbibed enough liquor to render him incapable of giving that attention and care to the operation of his automobile that a man of prudence and reasonable intelligence would give.[ix]
1924 would first see the defense of "no operation" raised in New York. In People v Domagala,[x] two police officers found the motorist, in an intoxicated condition, in his automobile, which was parked directly across the street with the front wheels resting "squarely against the curb." The proof further showed that the operator started his motor six different times, and every time, "when he attempted to throw it into gear," the motor stalled. Exploring available treatises for a definition of operation, the court recognized that operation occurs when one attempts "to put in action," "supervise the working of," "causes to move or perform the acts desired," or "bring[s] about a specified result." Applying a definition that is still observed today, Judge Noonan[xi] had little difficulty in finding the defendant's actions constituted operation.
The Volstead Act and its enabling legislation did not signal a complete retreat from New York's efforts to stop intoxicated motorists. Alarmed by the carnage that accompanied the Jazz Age, more powerful automobiles, and ironically, Prohibition, in 1926 the Legislature took dramatic action to amend former Highway Law ' 290(3)[xii] and created a new felony, causing serious bodily injury to another while driving in an intoxicated condition.
Also in 1926, the Legislature acted to resolve nagging problems that persisted between the misdemeanor status of Highway Law ' 290 and the seeming limitation on "courts of special sessions," present day justice courts, which ostensibly prevented them from exercising jurisdiction over first time offenders.
In People ex rel. Pierce v Howe,[xiii] the defendant was charged with a violation of ' 290, subdivision 3, of the Highway Law, which in part provided that "[w]hoever operates a motor vehicle while in an intoxicated condition shall be guilty of a misdemeanor." Noting that punishment was not prescribed but that misdemeanors generally carried a maximum period of imprisonment not more than one year or by a fine of not more than five hundred dollars or both,[xiv] the county sheriff maintained that ' 26‑b of the Code of Criminal Procedure divested the Courts of Special Sessions of jurisdiction. That section provided:
Subject to the power of removal provided for in this chapter, courts of special sessions . . . have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties, as follows: . . .
26‑b. All violations of the provisions of articles eleven and eleven‑a of the highway law except those which may be punishable by a fine exceeding fifty dollars, or by imprisonment exceeding six months.
Despite the apparent bar, the Second Department noted that an amendment to ' 56 of the Code of Criminal Procedure that was passed after ' 26‑b, but took effect one day before the later provision, vested the local courts with jurisdiction over:
All violations of the provisions of the . . . highway, general highway traffic and labor laws and ordinances of the cities, villages and towns and commissions and districts of the county, cities, villages and towns when authorized by law to adopt the same.
Finding that the conflict was but a legislative over‑sight, the court dispensed with the last serious objection to local court jurisdiction over first time offenders.
Proof of intoxication is the staff of the DWI prosecution. Although present‑day requirements for the proof of a common law case have been reduced to what are often a series of laughable and self‑serving conclusions, things were not always so. Decided in 1928, People v Dennis[xv] is typical of the issues these early prosecutions faced.
In Dennis, testimony that the defendant was intoxicated came not from the arresting officer, but from a "Doctor Kelly," who examined the defendant at the police station shortly after his arrest. No physical examination other than observation and conversation was had, after which the doctor concluded that the defendant was intoxicated.
Observing that "it is the practice in this kind of a case to call in a physician to examine the accused," the court rejected the argument that the observations were privileged and that his constitutional rights were somehow violated.
In 1929, the 1910 Highway Law provision was withdrawn and Vehicle and Traffic Law ' 70(5)[xvi] was enacted in its place. Differing primarily in its revocation provisions, New York, for the first time, imposed mandatory license revocation upon a conviction for driving while intoxicated, homicide or assault arising out of operating a motor vehicle.[xvii]
An arrest, particularly when an accident was involved, had always been a source of consternation. In 1934, the Legislature effected its long standing policy of permitting an arrest without a warrant irrespective of whether or not the offense has been committed in the officer's presence.[xviii]
In 1938, the National Safety Council Committee on Tests for Intoxication described a correlation between blood alcohol and the degree to which the subject would be physiologically affected. Establishing three "zones of influence," the study considered .05 percent to divide those not "under the influence" and those "to be possibly under the influence," and .15 percent to be the point where one may be presumed to be under the influence of alcohol.
In 1941, these findings were incorporated into New York Law. With the amendment of ' 70(5) the Legislature, for the first time, permitted admission of evidence of the amount of alcohol in the defendant's blood as shown by a "medical or chemical analysis" conducted of blood drawn within two hours of arrest.[xix] Adopting the three zones of influence, the Vehicle and Traffic Law[xx] now provided that a blood analysis of .05 or less was prima facie proof of no intoxication, that more than .05 but less than .15 was relevant evidence of intoxication and that evidence of a blood alcohol content in excess of .15 was prima facie proof of intoxication. Of interest, then as now, that provision required that the sample be withdrawn within two hours of arrest.
As it would turn, these statutory blood alcohol standards would prove of little effect in New York's effort to curb drunken driving. Enacted on their own, there was no means through which the motorist could be compelled to submit to the test, although important decisions stemming from this period can be found. In People v Barnes,[xxi] the defendant was injured in a motor vehicle accident. At 12:30 a.m. he was taken to a "Doctor Brigham" in Macedon for treatment. At 2:30 a.m. he returned to the good doctor, this time in the company of a State Trooper, for the sole purpose of having a blood sample taken to determine its alcoholic content.
Upon the trial of the indictment, the defendant contended that since a physician/patient relationship had previously been established, the results of the sample were accordingly protected. Rejecting this argument, The County Court (Brasser, J.)[xxii] held that, at the time the sample was drawn, Doctor Brigham was not attending the defendant in a professional capacity, and accordingly the results were not privileged.
On March 6, 1952, the National Safety Council's Committee for Tests on Intoxication released an abstract entitled "Evaluating Chemical Tests for Intoxication.[xxiii] Essentially a restatement of the Safety Council's 1938 findings, the conclusions were to some degree supplemented by the early works of Dubowski and others. Crucial to the modern DWI prosecution, it does not appear, from the face of this report, that additional research was carried out. If correct, this of course means that the blood, breath and urine sampling that formed the basis of the committee's conclusions were conducted using implements and methods that are primitive when judged by today's standards. Notable in the committee's conclusions and methods are the following:
! That blood and breath results correlated by .015%;
! That such deviations are not significant;
! That several "accepted" methods were used for analyzing blood;
! That "assuming all analytical work has been carried out in a proper manner [the Drunkometer, Intoximeter and Alcometer] may be used with confidence and the results so obtained will be reliable;[xxiv]
Key to the committee's findings is an appendix attached to the abstract. Drafted to resolve that controversy that surrounded the blood‑breath partition ratio, a subcommittee of four concluded:
[a]vailable information indicates that [the] alveolar air‑‑blood ratio is approximately 1:2100. However, since each method involves different procedures, different empirical factors are involved in the calculations of concentrations of alcohol in the blood in each of these methods.[xxv]
Faced with the relative infrequency of convictions based upon the subjective observational standards, increased postwar fatalities, and the relative ineffectiveness of the existing revocation and alcohol presumption provisions,[xxvi] the Vehicle and Traffic Law was amended in 1953 by the passage of ' 71‑a.[xxvii] This statute provided for the first time that a motorist, through acceptance of a license to drive,:
shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood provided that such test is administered at the direction of a police officer having reasonable grounds to suspect such person of driving in an intoxicated condition.
Noteworthy, in the 1953 legislation, is that it did not require an arrest and further was triggered by mere reasonable grounds to suspect.
The statute further provided:
If such person refuses to submit to such chemical test, the test shall not be given but the commissioner shall revoke his license or permit to drive.[xxviii]
Despite overwhelming similarity to present day Vehicle and Traffic Law ' 1194, the lack of a provision for notice and hearing resulted in invalidation of ' 71‑a on constitutional grounds.[xxix]
In 1954, the Legislature responded by re‑enacting ' 71‑a in principle so as to avoid the constitutional infirmity.[xxx]
In 1959, the New York Vehicle and Traffic Law was recodified. Sections 71 and 71‑a were moved to their present location in Vehicle and Traffic Law ' 1192,[xxxi] with the ' 71‑a, implied consent, placed in the newly created ' 1194 and the revocation procedures embodied in ' 510. The first offense remained a misdemeanor, the second a felony, and ' 71‑a presumptions remained unchanged.
Without question, the .15 percent presumption and the lack of any provision forbidding operation in a condition less than intoxicated created a gaping loophole for drivers who, although not intoxicated, were clearly "under the influence." In 1960, recognition of this fact led to the enactment of an entirely new traffic offense, driving while ability impaired.[xxxii] The offense permitted conviction only upon a blood alcohol test,[xxxiii] a restriction that was eliminated in 1970.[xxxiv]
In 1963, the Legislature realized that teenagers were interested in more than sock hops and Elvis. Difficulties with drivers under age 21 came to the forefront and accordingly resulted in the enactment of a .05 percent prima facie standard of impairment for the minor driver.[xxxv] Incredibly, this provision was eliminated in 1971.[xxxvi]
With the Vietnam Conflict and the corresponding social revolution, the 1960's saw an epidemic of drug use and drug influenced driving for which no legal prohibition existed. To counter this dilemma, Vehicle and Traffic Law ' 1192 was amended to prescribe operating a motor vehicle while one's ability to do so was impaired by drugs and declared the same to be a misdemeanor.[xxxvii]
In 1970, the Legislature undertook its most comprehensive review of New York's substance influenced driving provisions and adopted the scheme in effect today. First, it put into place blood test presumptions akin to those presently found in ' 1195.[xxxviii] Second, and more importantly, it created a per se offense by making it a crime to drive with more than .15 percent of alcohol by weight in the bloodstream.
In what would develop as a source of great confusion, the 1970 recodification saw the "two‑hour" rule[xxxix] placed into the implied consent subdivision.
In 1971, the Legislature both lowered the prima facie standard for intoxication to .12 percent and imposed stricter presumptions for driving while ability impaired.[xl] 1971 also saw the Breathalyzer being afforded judicial recognition in the Fourth Department's landmark decision, People v Donaldson.[xli]
By 1972, spiraling fatalities in the face of what was perceived as the relatively ineffective state of enforcement, belatedly brought the Legislature to incorporate the American Medical Association's 1960 .10 percent "prima facie evidence" standard[xlii] into the ' 1195(2)[b] presumptions.[xliii] Also incorporated was the newly created per se offense that, when coupled with the 1974 addition of a provision pertaining to results of more than .05 but less than .07 percent, effectively established the quantitative standards in effect today.[xliv] Finally in 1972, the Legislature enacted the present Parks and Recreation Law ' 25.24 which, in forbidding operation of a snowmobile while under the influence, largely mirrored those provisions relating to motor vehicle operation.[xlv]
Concern over high rates of recidivism among those convicted of alcohol influenced operating offenses came to the forefront in 1973. With the enaction of former Vehicle and Traffic Law '510(2)(a)(vi), the Legislature enacted its first provision for suspension pending prosecution.[xlvi] This provision enabled the arraigning magistrate to suspend, pending prosecution of the criminal action, the operator's license of an individual charged with an alcohol related operating offense who was previously convicted of such an offense within the preceding five years. Surprisingly, the constitutionality of this provision, has never been challenged.
With the substantive offense firmly in place, the Legislature turned its attention to licensing, punishment, and driver education.
In 1975, the penalty for felony DWI and impairment by drugs was increased through the imposition of a fine of not less than Two Hundred Dollars and a period of imprisonment of not less than sixty days.[xlvii]
Inconceivable in today's climate, it is nevertheless interesting to note that in 1975, legislation was actively considered to decriminalize the first conviction for driving while intoxicated or operation under the influence of drugs.[xlviii]
Plea bargaining, always a source of irritation, was severely limited by a 1980 amendment to ' 119,[xlix] which required a plea to a ' 1192 offense. While in 1981, the predicate scheme for driving while ability impaired was installed in what is essentially it's present form.[l] Also in 1981, the statutory fine for misdemeanor offenses was established at its present level of three hundred fifty dollars, felony offenses raised to not less than five hundred dollars, and, for the first time, an unconditional discharge was absolutely forbidden. While the new act also forbade a conditional discharge unaccompanied by imposition of the mandatory fine, the court did retain the power to issue and then suspend such sentence provided it placed its reasons for so doing in the record.[li]
Of final, but certainly not of inconsequential significance, 1981 saw creation of the Special Traffic Options Programs for driving while intoxicated, more commonly called STOP DWI.[lii] This program, to be adopted on a county by county basis, created intensive educational, coordinational, and statistical facilities, as well as the administrative infrastructure funded by fines collected for violations of the alcohol or drug related provisions.
Extending the reach of enforcement, in 1982, the Legislature enacted '1192(7)[liii] which removed the apparent exemption of "parking lots" from '1192 enforcement.[liv] 1983 saw the addition of two new Penal Law charges: vehicular manslaughter,[lv] which upgraded criminally negligent homicide to a class D felony when the same occurred in violation of subdivisions two, three, or four of ' 1192; and vehicular assault,[lvi] which established a class E felony for negligently causing serious physical injury while violating the provisions of subdivisions two, three, or four of ' 1192.
By 1984 it was becoming statistically apparent that the newly created opportunities for suspension and revocation were presenting increased opportunities for unlicensed operation. In 1985, the Legislature responded by restructuring those provisions relating to unlicensed operation through the creation of two crimes:[lvii] (1) aggravated unlicensed operation in the second degree,[lviii] a misdemeanor which prohibited bare operation in the face of an alcohol related suspension or revocation; and (2) aggravated unlicensed operation in the first degree,[lix] a felony combining aggravated unlicensed operation in the second degree with an alcohol related conviction. Both provisions imposed mandatory incarceration.
Spurred by strong public support as well as the backing of powerful and politically popular national groups such as M.A.D.D.,[lx] S.A.D.D.,[lxi] and local groups like R.A.I.D.,[lxii] the Legislature continued to broaden both the scope and grip of alcohol related revocation provisions. In 1985, it added yet another homicide provision, Penal Law ' 125.13, vehicular manslaughter in the first degree,[lxiii] which upgraded the existing D felony to a C felony when occurring in the face of an existing alcohol related suspension or revocation.
Logically consistent, the addition of vehicular assault in the first degree[lxiv] resulted in a class D felony. The existing two tiered framework thus mirrored the revocation feature of the newly created class C homicide.
Enacted in 1985 was the present provision requiring that a conviction for operating under the influence of drugs be treated as a predicate upon any later violation of ' 1192.[lxv] It also deemed an out of state conviction for operating under the influence of alcohol to be the equivalent of an in‑state violation of ' 1192(1).[lxvi]
Recognizing that impairment by operators of taxicabs, buses, school buses, and those driving heavy trucks or hauling hazardous materials posed grave issues of public safety, the Legislature, in 1986, enacted what forms the present provisions on "special vehicles[lxvii] and removed the distinction between driving while ability is impaired and driving while intoxicated. The enactment similarly increased the punishment for such operators.
Expressing an intention to consolidate the various and detached alcohol related provisions, the Legislature, in 1988, followed certain 1987 technical corrections[lxviii] with a comprehensive restructuring and reenactment of Article 31, which placed all drinking driving provisions within a single article.[lxix] Noteworthy in the enactment was the redesignation of ' 1192(2) as "driving while intoxicated (per se)[lxx] and "driving while ability impaired by drugs" respectively, as well as the creation of an entirely new ' 1193 stating the criminal and administrative sanctions for violations of ' 1192. Former ' 521, concerning the Drinking Driver Program, was reenacted as present ' 1196, and the STOP DWI Program, formerly found in Article 43‑a, was placed within the body of ' 1197.
In 1992, the Legislature created two new offenses,[lxxi] Vehicle and Traffic Law '1192 (5) Driving While Intoxicated: Commercial Motor Vehicles; Per Se - Level I and Vehicle and Traffic Law ' 1192(6) Driving While Intoxicated: Commercial Motor Vehicles; Per Se - Level II. These new provisions prohibited the operation of specified types of commercial motor vehicles with dramatically reduced blood alcohol levels.
1992 also saw the judiciary begin to tackle the ongoing problem of persistent offenders. Alarmed by the flood of persistent felony DWI offenders, in People v Bowers,[lxxii] the Essex County Court approved, for the first time, the so-called persistent felony status for a DWI offender and sentenced the defendant to a term of fifteen years to life. Upheld on appeal, such status has been applied in several other instances[lxxiii] and overturned on only one occasion.[lxxiv]
On August 2, 1994, Governor Cuomo signed into law what proved to be the most sweeping change in the prosecution of alcohol related operating offenses in a decade. Contained in a bill which was sponsored by Cuomo's gubanotorial opponent, Vehicle and Traffic Law '1193(2)(e)(7) became the long sought mechanism for suspending the licenses of operators who fail chemical tests. Providing for judicial suspension, the bill almost immediately fell into grave trouble on two counts, constitutionality and Double Jeopardy. Troubled by the seeming absence of notice and hearing provisions, 1995 would be dominated by challenges brought against the seemingly draconian operation of the statute. Ultimately, in Pringle v Wolf[lxxv] the Court of Appeals would have its say, approving the enactment in a decision which was something less than a model of judicial clarity.
While numerous propositions directed toward under 21 alcohol influenced operation have been launched over the years, in 1996, one finally became law. Consisting of an entirely new proviso, Vehicle and Traffic Law ' 1192-a, created an entirely administrative mechanism aimed to enforce so-called zero tolerance. Creating an administrative procedure and penalty for motorists aged less than 21, the effort to ban operation at BACs of .02 and over has met largely with failure. Apparently, the administrative discovery provisions have simply met with too much opposition from law enforcement to enable their use.
Notable, by omission, has been the failure to pass .08 legislation. Now in place in some thirty eight states, this proposal, like so many others of recent vintage, has repeatedly died in committee.
[i]. "Now Noah, a man of the soil, was the first to plant a vineyard. When he drank some wine he became drunk . . ." Genesis 10:20.
[ii].L. 1910, ch. 374.
[iii]. Ch. 360 ' 30 .
[iv]. The provision provided merely that, "[w]hoever operates a motor vehicle while in an intoxicated condition shall be guilty of a misdemeanor."
[v].People v Weaver, (1919) 188 App Div 395, 177 NYS 71.
[vi]. In view of the fact that Weaver's act of calling the coroner was noted by the court to be but one additional indication of sobriety, it appears that the collision was a fatality, thereupon explaining the fact that the other operator, while apparently displaying a higher level of criminally culpable conduct, was not charged.
[vii]. Id. at 398.
[viii].People v Cruz (1979) 48 NY2d 419, 423 NYS2d 625, 399 NE2d 513, app dismd 446 US 901, 64 L Ed 2d 254, 100 S Ct 1825.
[ix]. Weaver at p. 400.
[x]. People v Domagala (1924) 123 Misc 757, 206 NYS 288.
[xi].It is interesting to note that Judge Noonan was the grandfather of present day Genesee County Judge and former Genesee County District Attorney Robert Noonan.
[xii]. L. 1926, ch. 732, ' 1.
[xiii]. People ex rel. Pierce v Howe (1926) 218 App Div 273, 218 NYS 361.
[xiv]. Former N.Y. Penal Law ' 1937.
[xv]. People v Dennis (1928) 132 Misc 410, 230 NYS 510.
[xvi]. L. 1929, ch. 54.
[xvii]. N.Y. Veh. and Traf. Law, former ' 71, added by L. 1929, ch. 54.
[xviii]. L. 1934 ch. 439 ' 1.
[xix]. L. 1941, ch. 726, ' 1.
[xx]. Ch. 726, ' 1 .
[xxi].People v Barnes (1950) 197 Misc 477, 98 NYS2d 481.
[xxii]. Also of regional interest, the case was prosecuted by Marshall E. Livingston and defended by James P. Donovan of Canandaigua.
[xxiii]. Turner, Bennett, Cestaric, Muehlberger, "Evaluating Chemical Tests for Intoxication," National Safety Council, Committee on Tests for Intoxication [undated].
[xxiv]. Id. at 10.
[xxv]. Id. at 13.
[xxvi]. King and Tipperman, The Offense of Driving While Intoxicated: The Development of Statutory and Case Law in New York, 3 Hofstra L Rev 541, 549 (1975).
[xxvii]. L. 1953, ch. 854, ' 1.
[xxviii]. L. 1953, ch. 854 ' 1.
[xxix]. Schutt v MacDuff (1954) 205 Misc 43, 127 NYS2d 116; People v Ward (1954) 307 NY 73, 120 NE2d 211.
[xxx]. L. 1954, ch. 320, ' 1, amdg N.Y. Veh. & Traf. Law, ' 71‑a, as added by L. 1953, ch. 854, ' 1.
[xxxi]. N.Y. Veh. & Traf. Law, ' 1192, added by L. 1959, ch. 775.
[xxxiii]. People v Bronzino (1966, 2d Dept) 25 App Div 2d 685, 269 NYS2d 83.
[xxxiv]. L. 1970, ch. 275; see, also, Governor's Memorandum, NY Legis Ann, 1970, p 364.
[xxxv]. L. 1963, ch. 869 ' 2.
[xxxvi]. L. 1971, ch. 495 ' 1.
[xxxvii]. L. 1966, ch. 963, ' 1, amdg N.Y. Veh. & Traf. Law, ' 1192, subd 2.
[xxxviii]. .05 BAC or less‑‑prima facie evidence of no impairment, and no intoxication; more than .05 and less than .10‑‑prima facie evidence of no intoxication, relevant evidence of impairment. .05 or more for driver under 21‑‑prima facie impairment; .10 or more‑‑prima facie evidence of impairment, relevant evidence of intoxication.
[xxxix]. See ' 8:9, infra.
[xl]. More than .05 and less than .08‑‑prima facie evidence of no intoxication, relevant evidence of impairment; .08 or more‑‑prima facie evidence of impairment, relevant evidence of intoxication. L. 1971, ch. 495 '' 2, 4.
[xli]. People v Donaldson (1971, 4th Dept) 36 AD2d 37, 319 NYS2d 172.
[xlii]. 1 Erwin, Defense of Drunk Driving Cases, ' 14.02, p. 14‑13 (1991 Rev.).
[xliii]. .05 or less, prima facie evidence that the operator is not impaired or intoxicated; more than .07 but less than .10, prima facie evidence that the driver is not intoxicated, prima facie evidence of impairment.
[xliv]. The author wishes to acknowledge Judge Irving Lang's brief yet thorough encapsulation of the history of DWI in New York which appeared in People v Schmidt (1984) 124 Misc 2d 102, 478 NYS2d 482.
[xlv]. L. 1972, ch. 897, ' 1; repealed and reenacted by L. 1973, ch. 400, ' 92.
[xlvi].L 1973, ch 541, '2.
[xlvii]. L. 1975 ch. 426 ' 12. The mandatory jail provision was subsequently withdrawn in 1981 (L. 1981 ch. 910 ' 4).
[xlviii]. S. 284, 198th N.Y. Leg., 1st Session .
[xlix]. L. 1980 ch. 806 ' 1.
[l]. L. 1981 ch. 913 ' 3. Stiffer jail terms were apparently contemplated and rejected (see L. 1981 ch. 910 ' 4).
[li]. L. 1981 ch. 910 ' 4. The ability to suspend was withdrawn one year later (L. 1982 ch. 391 ' 1).
[lii]. See, N.Y. Veh. & Traf. Law ' 1197.
[liii]. Present N.Y. Veh. & Traf. Law ' 1192(5). In 1986 (L. 1986 ch. 226 ' 1) the Legislature amended the definition to include virtually all areas in use for parking four or more vehicles with the exception of such areas used in conjunction
with one or two family homes.
[liv]. See, People v Kenyon (1981, 4th Dept) 85 App Div 2d 916, 446 NYS2d 783; see also, People v Edsall (1981) 111 Misc 2d 767, 444 NYS2d 994.
[lv]. N.Y. Penal Law ' 125.12, added L. 1983 ch. 298 ' 2.
[lvi]. N.Y. Penal Law ' 120.03, added L. 1983 ch. 298 ' 1.
[lvii]. L. 1985 ch. 756 ' 1.
[lviii]. N.Y. Veh. & Traf. Law ' 511(2).
[lix]. N.Y. Veh. & Traf. Law ' 511(3).
[lx]. Founded in California in 1980, Mothers Against Drunk Driving has grown to 2.95 million members and supporters nationwide.
[lxi]. Founded in 1981, Students Against Driving Drunk.
[lxii]. Rochestarians Against Intoxicated Drivers.
[lxiii]. L. 1985 ch. 507 ' 4. Vehicular manslaughter was thereupon redesignated vehicular manslaughter in the second degree (L. 1985 ch. 507 ' 3).
[lxiv]. N.Y. Penal Law ' 120.05, added L. 1985 ch. 507, ' 2.
[lxv]. L. 1985 ch. 729 ' 1.
[lxvi]. L. 1985 ch. 694 ' 1, present N.Y. Veh. & Traf. Law ' 1192(6).
[lxvii]. N.Y. Veh. & Traf. Law ''93(1), 1193(2).
[lxviii]. L. 1987 ch. 687. The amendments related primarily to sentencing.
[lxix]. L. 1988 ch. 47.
[lxx]. Of interest, the espoused legislative purpose for the addition of the title "per se" was to counter the effect of the decision of the Court of Appeals in People v Mertz (1986) 68 NY2d 136, 506 NYS2d 290, 497 NE2d 657 a mission which has not been fulfilled.
[lxxii].People v Bowers (1992, Co Ct) 153 Misc 2d 422, 581 NYS2d 575, affd (3d Dept) 201 App Div 2d 830, 608 NYS2d 347, app den 83 NY2d 909, 614 NYS2d 391, 637 NE2d 282.
[lxxiii].See, People v Turner, 234 AD2d 704, 707, 651 NYS2d 655; People v Stauffer, 247 AD2d 911; 668 NYS2d 532 (1998, 4th Dept), app den, 92 NY2d 861, 699 NE2d 452, 677 NYS2d 92.
[lxxiv].People v Howard Donhauser, CAD2dC, CNYS2dC, 1998 WL 805048 (November 13, 1998, 4th Dept).
[lxxv].88 NY2d 426, 432-33, cert. denied, 117 S. Ct. 513 (1196).
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