People v. Barrett

• Decision Date: 14 December 1976
• Citation: 393 N.Y.S.2d 225,89 Misc.2d 631
• Court: New York Justice Court
• Parties: The PEOPLE of the State of New York v. Raymond H. BARRETT.

Page 225

393 N.Y.S.2d 225

89 Misc.2d 631

The PEOPLE of the State of New York v. Raymond H. BARRETT.

Justice Court, Town of Tonawanda, Erie County.

Dec. 14, 1976.

Edward C. Cosgrove, Dist. Atty., of Erie County, Paul F. McCarthy, Buffalo, of counsel for the People.

Robert E. Murphy, Amherst, for defendant.

WILLIAM G. COLEMAN. Town Justice.

The defendant was arrested on August 5, 1976 and charged by Trooper T. J. Kenny with Driving While Intoxicated, a violation of Section 1192, subd. 3 of the Vehicle and Traffic Law.

When this matter came on for trial without a jury, the Assistant District Attorney and counsel for the defendant agreed that there was no dispute on the facts and that the only substantial question was one of law to be decided by the court. Accordingly, they stipulated as follows:

'On August 5, 1976 at approximately 7:00 P.M. the defendant's vehicle was observed by Trooper Kenny traveling in an easterly direction on the Youngman Highway. He clocked said vehicle at 31 miles per hour in a 55 mile per hour zone. He also observed that the defendant's vehicle was swerving slightly. Another vehicle traveling in the same direction was almost sideswiped by that of the defendant. At that point Trooper Kenny stopped the defendant's vehicle and began talking to him. When he asked for his license and registration the trooper observed that the defendant had some difficulty speaking, that his eyes were bloodshot and that in the opinion of the trooper the defendant was 'in an intoxicated condition.' He also noted that the defendant was neatly dressed.'

'The trooper then took the defendant to the Clarence Substation of the State Police and a breathalyzer test was administered by Sergeant V. E. Baron. In performing the test a normal operations checklist was used, the calibration of the machine and the analysis of the equilibrating solution were proper; the ampules used were normal in all respects, the machine had been calibrated weekly and appeared to be in proper working condition. A blood alcohol reading of .15 was obtained.'

The parties stipulated that if Trooper Kenny and Sgt. Baron were called they would testify to all of these items. At that point both sides rested and the defendant's attorney moved to dismiss the charges of driving while intoxicated. The court reserved decision.

Both Assistant District Attorney Paul McCarthy and defendant's counsel Robert Murphy, were aware that in a prior ruling this court had found Section 1192, subd. 3 of the V&T law unconstitutional. (See People v. LaPlante, 81 Misc.2d 34, 365 N.Y.S.2d 392). They were also aware that the Appellate Division, 4th Dept., in People v. St. Ours, 54 A.D.2d 1080, 388 N.Y.S.2d 752 as recently as November 5, 1976 had considered the question of the constitutionality of Section 1192 but had avoided ruling on that issue in rendering its decision.

They also brought to this court's attention that in a resent decision of the County Court of Erie County had cast some new perspective on the constitutional issue. This was People v. Kapsuris, 89 Misc.2d 634, 392 N.Y.S.2d 785 decided on November 29, 1976. We are advised that the County Court's opinion has now been accepted for publication by the State reporter.

If the County Court has overruled People v. LaPlante, we are bound in this and all future cases to respect and follow the same. On closely reading the County Court's decision we are certain that the Court has upheld the constitutionality of Section 1192, subd. 3, at least in part. In doing so it has recognized that difficult problems of proof exist in distinguishing between driving while intoxicated and driving while impaired. We believe that the court has established the following guidelines:

1) If there has been no blood alcohol test, the proof required to convict for driving while intoxicated must be overwhelming.

'It may be that either a chemical test will be required or that the indictment and proof must show that the defendant was very, very drunk to sustain an indictment for driving while intoxicated.' (People v. Kapsuris, supra, p. 635, 392 N.Y.S.2d p. 786)

2) Section 1195 of the V&T law defines a clear line...