New York Criminal Law and Procedure

DWI with a conditional license not a violation of the conditional license

Violating terms of a conditional license is a traffic violation and not considered driving with a revoked license. In People v. Rivera (Ct. App. 5/3/2011) (Smith, J.) (5-2) the Court of Appeals affirmed the dismissal of the charge of Aggravated Unlicensed Operation of a Motor Vehicle 1º.  The Defendant, on November 14, 2007, was convicted of DWI and had his license revoked for a minimum of six months. As a first-time offender, the Defendant was able to get a conditional license that allowed him to drive to and from work, school, the rehabilitation program and from noon to 3 P.M on Saturdays. The Defendant was arrested for driving while intoxicated at 1:04 A.M. on February 20, 2008. He was charged with aggravated unlicensed operation of a motor vehicle in the first degree, under VTL § 511(3).

The Supreme Court granted the Defendant's motion to dismiss the charge prior to trial. The Appellate Division affirmed. The People appealed and the Court of Appeals affirmed 5-2.

The Court held that the Defendant had violated VTL § 1196(7)(f) by operating a motor vehicle in violation of his conditional license. The People had argued that the Defendant violated VTL § 511(3)(a)(i), a class E felony, by operating a motor vehicle knowingly with a revoked license, that the license was previously revoked for DWI, and committed the current crime while driving while intoxicated. The Court supported the Defendant's argument that he could not be charged with driving with a revoked license since he had a conditional license, holding that the argument was logical and supported by the legislative history of the statute.

The Legislature enacted VTL § 1196(7)(f) to address violations of use of a conditional license, increasing the maximum fine allowed from $100 to $500, keeping the maximum prison term limited to 15 days, and revocation of the conditional license. The Court held the amendment made such violations a more serious traffic infraction, and had it wanted to, the Legislature could have amended § 511 to specifically criminalize what the Defendant did. The majority stated that without a change to the rules, the maximum punishment for driving while violating terms of a conditional license is controlled by VTL § 1196(7)(f).

Judge Graffeo dissented, joined by Judge Pigott, arguing that the District Attorney should have the discretion to charge either VTL § 1196(7)(f) or § 511(3)(a)(i) and that the majority's holding punishes a person who drives drunk with the same penalty as someone who violates his conditional license with a minor infraction. The dissent pointed out that in order to have a conditional license, the Defendant must first have had his license revoked and that any operation of a motor vehicle outside of the terms of the conditional license, should be treated as operation with a revoked license. The dissent goes on to argue that because two different statutes cover the illegal conduct, either one can be used, at the People's discretion, and that the existence of the lesser crime, under VTL  § 1196(7)(f) does not preclude use of  § 511(3)(a)(i). Since the Legislature did not eliminate the higher, class E felony, statute, the People should be able to use it. The dissent argued that the holding allows the Defendant more lenient treatment because he had a conditional license, something they believe the Legislature had no intention of doing when they created the conditional license.  (JMM/LC)

 

Express consent to blood draw does not require arrest

When a defendant expressly consents to a blood draw, the lack of arrest does not make the subsequent taking of blood invalid.  In People v. Centerbar (3d Dept. 1/20/2011), the Defendant was taken to the hospital after his motorcycle crashed, killing his passenger.  At the hospital, the Defendant consent to a blood draw to test for his BAC.  On appeal, he argued that the blood draw was unlawful because the police had not arrested him first.  The Third Department rejected this argument.  The requirements of (1) a valid arrest and (2) a blood draw within two hours of the arrest are only for an application of the state's implied consent law.  "[T]he arrest requirement in the implied consent law, like the two-hour time frame therein ... has no application where a driver expressly and voluntarily consents to the administration of a blood alcohol test."

The court went on to conclude that the Defendant's consent was the product of free will.  Although in pain, the Defendant was communicative, not restrained, and not sedated.  The Defendant was fully alert.  The consent was obtained prior to the Defendant's condition deteriorating, which required emergency surgery.  (LC)

AD1 considers suspension notice foundation issue

A defendant’s confrontation right is violated when documentary evidence of a license suspension is admitted without an opportunity to cross-examine the affiant.  

In People v. Abelo (1st Dept. 12/28/2010), Defendant was convicted at a bench trial of Aggravated Unlicensed Operation of a Motor Vehicle 2° (AUOMV2°). An AUOMV2° conviction requires that the People prove that the Defendant had knowledge or reason to know that he was driving with a suspended license.  To satisfy this element, the People introduced suspension notices through the direct examination of a DMV employee.  The employee testified to having worked for the DMV since 2002 and stated that in 1992 and 1993 the DMV mailed the Defendant suspension notices.  On cross-examination, the employee admitted that she could not testify to DMV mailing procedures during 1992 or 1993.  The trial court refused to admit notices from 1993, but admitted a notice from 1992.

On appeal, the Defendant argued that the People were required to produce a witness who was familiar with DMV mailing procedures of the respective periods for cross-examination.  Three First Department justices agreed with the Defendant.  The court reversed the conviction and ordered a retrial.  The court reasoned that a witness without knowledge of the relevant procedures could not lay the appropriate foundation, nor did the witness satisfy the obligation established by the Confrontation Clause.

The court found this error was not harmless, because the evidence also showed that, despite having a suspended license in the early 1990s, the DMV issued him new licenses on several occasions afterwards when he returned to New York after brief stays in other stays.  This indicated that there was less than overwhelming evidence that the defendant knew that his license was suspended, the key issue in the case.

Justice Nardelli joined Justice DeGrasse in dissent.  The dissent disagreed with the majority’s interpretation of the witness' preparation.  They believed that the witness had familiarized herself with the 1992 DMV mailing procedures, but was not familiar with the 1993 DMV mailing procedures.  Thus the dissent would have affirmed the conviction on the ground that the 1992 notice was properly admitted.  The dissent considered the production of the DMV employee as satisfying Defendant’s confrontation right.  (MM/LC)

No six-month breathalyzer calibration requirement

People v. Todd, 38 N.Y.2d 755 (1975), does not impose a bright-line timing rule for calibration of breath-alcohol detection devices.

In People v. Boscic (Ct. App. 11/17/2010), the People appealed a ruling from the County Court where the results of a breath-alcohol detection test were suppressed on the ground that the breath-alcohol detection device had not been calibrated within the six months prior to the test.  The device had been calibrated six months and three weeks prior to use, but the County Court interpreted Todd as setting forth a bright line rule that breath-alcohol detection devices must be calibrated at least every six months.

The Court of Appeals unanimously held that Todd did not set forth a bright line six-month calibration rule.  The court discussed the evolution of breath-alcohol detection devices from the Todd era, 1975, to the modern device used to test the defendant.  The discussion highlighted the improved reliability of the devices.  Additionally, the court noted that regulations have been promulgated by the New York State Department of Health to govern the calibration of these instruments.  The applicable regulation requires annual device calibration unless more frequent calibration is recommended by the device manufacturer.  See 10 N.Y.C.R.R § 59.4(c).  Although the regulation was not in effect at the time the defendant was tested, the court reasoned that the regulation provided guidance for the determination of calibration interval.

In reversing the County Court, the Court of Appeals clarified the admissibility standard for alcohol-breath detection device results.  The court held that the appropriate interpretation of Todd, and thus the appropriate standard for admissibility, was that the People had to demonstrate that the device “was in proper working order at the time it issued the test results in question.” Thus, the court declined the opportunity to set a bright-line rule to determine whether the device was in "proper working order."  (MM/LC)

Pre-2006 out-of-state convictions ineligible for DWI elevation

VTL § 1192(8) does not allow consideration of an out of state conviction, occurring prior to November, 1 2006, for purpose of elevating a charge of DWI from a misdemeanor to a felony.

In People v. Ballman (Ct. App. 6/10/2010) (Lippman, C.J.) (7-0), the defendant was charged with Driving While Intoxicated as a felony.  The People elevated the DWI charge to a felony on the basis that the defendant had a 1999 conviction for Driving with an Unlawful Alcohol Concentration from the state of Georgia, which would have been a violation of VTL § 1192(2) had it occurred in New York.  The defendant argued that the date of the Georgia conviction rendered it ineligible to act as a predicate for elevating the charge to DWI as a felony.  The trial court denied the motion, finding that the legislative intent behind VTL § 1192(8) was to treat prior out-of-state convictions as if they were prior convictions in New York.  Subsequently, the defendant pleaded guilty to DWI as a felony and then appealed.  The Appellate Division reversed, determining that the language of the 2006 amendment to Vehicle and Traffic Law § 1192(8) and its enabling language indicated that convictions occurring prior to November, 1 2006, could not be used to raise a DWI offense from a misdemeanor to a felony.  Both parties appealed.

The statute, as amended, reads:

A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section . . . provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section.

VTL § 1192(8).  The enabling language accompanying the amendment specifies that "[t]he provisions of [VTL § 1192(8)], as it existed prior to the amendment made by ... this act, shall apply only to convictions occurring on or after November 29, 1985 through and including October 31, 2006 and provided, further, that the provisions of [Vehicle and Traffic Law § 1192(8)] as amended by ... this act shall apply only to convictions occurring on or after November 1, 2006." The amendment took effect on November 1, 2006.

The Court of Appeals unanimously affirmed the Appellate Division’s interpretation of the statute.  Looking to the plain language and history of these sections, the court concluded that the Legislature intended to include only out-of-state offenses after November 1, 2006, within the statute's reach.  (MM/LC)

AD2 addresses Grand Jury defects in recent decision

In People v. Walton (2d Dept. 2/9/2010), the Second Department unanimously held that an evidentiary defect is not fatal to an indictment where 1) the prosecutor instructs the grand jury to disregard the inadmissible evidence cured the evidentiary defect, and 2) where the remaining evidence is sufficient to sustain the indictment.  Additionally, the court held that a prosecutor need not instruct a grand jury "regarding the effect of intoxication on the culpable mental state of depraved indifference" in a DWI homicide.  Finally, the court held that a conflation of Vehicle and Traffic Law (VTL) and Penal Law (PL) mental state terms were "mere mistakes" not requiring dismissal of the indictment. 

The case arose out of the following alleged facts.  The defendant was intoxicated and racing on the Southern State Parkway at speeds up to and beyond 109 mph.  At some time during the race, the defendant lost control of his car and struck the center divider.  The impact caused a passenger in the defendant's car to be ejected and sustain fatal injuries.

Before the Grand Jury, a forensic toxicologist testified regarding the the effects of marijuana use on humans.  However, the prosecutor later instructed the grand jury to disregard the marijuana-related evidence and redacted information relating to marijuana from documents in evidence, since the same toxicologist was unable to testify that the defendant was, in fact, under the influence of marijuana.  The Grand Jury subsequently indicted the defendant for Murder 2º, Manslaughter 2º, and Reckless Driving.  However, the Supreme Court, Nassau County, later dismissed the indictment, citing defects in the Grand Jury proceeding, including the introduction of the marijuana-related evidence at the grand jury, in addition to the prosecutor's "failure to instruct the grand jury regarding the effect of intoxication on the culpable mental state of depraved indifference[.]"  Additionally, the trial court cited as error the prosecutor's incorrect equating of the PL term "recklessly" with the VTL term "reckless."

On the People's appeal, the Second Department first noted that the standard for dismissal of an indictment is "very precise and very high [and is] limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury."  Accordingly, the court noted that "the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment."  Additionally, the court noted that, once a prosecutor instructs a grand jury to disregard inadmissible evidence, "the grand jury is presumed to have followed the prosecutor's curative instructions, dispelling any prejudice to the defendant."   Combining these standards, the court concluded that the indictment should not have been dismissed merely on the basis of inadmissible marijuana evidence, since the prosecutor gave curative instructions to the Grand Jury, which that body is presumed to have followed.

The court also considered the prosecutor's failure to instruct the Grand Jury regarding the effect of intoxication on the mental state of depraved indifference, noting that "a prosecutor is not required to present mitigating defenses to a grand jury."  The court further reasoned that intoxication was "like a mitigating defense," as it "reduced the gravity of the offense by negativing an element."  At best, a successful intoxication defense would result in a conviction for Manslaughter 2º, a crime for which the defendant was also indicted; therefore, in this context intoxication was a mere mitigation defense and the People were not required to charge the Grand Jury on it.

In regard to the prosecutor's other instructions to the grand jury, the court noted that prosecutors' instructions to the Grand Jury are sufficient if the instructions provide enough information to enable intelligent decision of (1) whether a crime has been committed, and (2) whether legally sufficient evidence exists to establish the material elements of the crime.  Applying this standard, the court concluded that, since the prosecutor tracked the relevant language of the VTL, his incorrect instructions regarding the word "recklessly" were "superfluous" and "mere mistake."

Thus, the court found that the defects in the Grand Jury proceeding were not prejudicial to the "ultimate decision" of the grand jury and that, therefore, dismissal of the indictment was not warranted.  Accordingly, the court reversed the order of the trial court and reinstated the indictment.  (JTR/LC)

Flashing brights does not give cause for car stop

In People v. Rose (4th Dept. 11/13/2009), a unanimous panel of the Fourth Department concluded the police lacked reasonable suspicion to stop the defendant's vehicle after the driver flashed its brights while an oncoming car approached.  The court noted the general rule that "police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or where there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime' . . . or where the police have probable cause to believe that the driver . . . has committed a traffic violation'."  Here, the police officer relied on VTL § 375(3), which he claimed prohibited the flashing of brights.  The court concluded, "Section 375(3) actually provides in relevant part that, 'whenever a vehicle approaching from ahead is within [500] feet . . ., the headlamps, if of the multiple beam type . . . shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle . . . .' The mere flashing of lights, alone, does not constitute a violation of the statute."  Since the officer operated on a mistake of law, suppression was required --- a result with which I agree.

However, the court's recitation of the law omits a key component of the rule, in my opinion.  Police do not just enforce the law; they also serve a community caretaking function (rescuing cats from trees, helping car accident victims, giving directions, etc.).  There are certain situations in which a traffic stop could be justifiably based on the community caretaking function.  For example, a person flashing their brights might be trying to signal distress of some kind.  Perhaps there is a kidnapper with a loaded gun in the passenger seat.  Or maybe the driver needs medical attention and does not have a cell phone to call an ambulance.  For whatever reason, the flashing of brights might be a signal for help.  If the objective circumstances support that conclusion, the officer should be able to make a limited stop.  Nevertheless, since the officer in Rose explicitly testified that he stopped the car because he thought the driver violated the VTL, it is purely an academic question in this case and the court reached the right result.  (LC)

Out-of-state DWI blood draws

People v. Lerow (4th Dept. 11/20/2009) (Peradotto, J.) presents a question of first impression for New York courts and will likely be taken up by the Court of Appeals.  In that case, the defendant was injured in a motorcycle accident.  Responding officers, as well as an eyewitness, reported the defendant's breath smelled of an alcoholic beverage.  Because of his injuries, the defendant was transported to a hospital in Pennsylvania.  A New York sheriff's deputy went to the hospital and requested that a nurse take a sample of the defendant's blood.  The question is whether this blood draw was lawful because it was done out-of-state.

The Fourth Department unanimously concluded that deputy had authority to order the blood draw even though he was out-of-state.  The court distinguished between official acts that depend on the sovereignty of the state --- such as the power of arrest --- with mere evidence gathering.  A "police officer" does not lose his status as an agent of the state under the latter category merely because he leaves the state.  Moreover, the court held that it would be illogical to limit the reach of the implied consent statute based on the "fortuity" of the defendant requiring medical care outside of the state.  The court cited favorably decisions of other states upholding the authority of their officers to collect DWI blood samples out-of-state.  Since Pennsylvania has a similar implied consent law, the court's rule would not offend Pennsylvania law or that state's public policy. 

(The court also rejected an argument that Pennsylvania law, which requires blood draws by physicians, not nurses, should control, reasoning that choice-of-law principles dictated the application of New York law, the law of the prosecution forum.)

The court's arguments are persuasive, but I am not entirely convinced by its reasoning.  The sheriff's deputy was not merely collecting evidence --- at least not in the same sense that a detective does when he interviews witnesses out-of-state, for example.  Rather, the authority under the implied consent statute is a specific grant of authority by the state only to a certain class of persons: "police officers."  Only official "police officer" may request a blood draw, not a private citizen. In contrast, any private citizen could conceivably go into another state and take witness statements.  (LC)