People v. Beyer

• Decision Date: 04 August 2005
• Docket Number: 15534.
• Citation: 2005 NY Slip Op 06245,799 N.Y.S.2d 620,21 A.D.3d 592
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DOUGLAS E. BEYER, Appellant.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 592

799 N.Y.S.2d 620

2005 NY Slip Op 06245

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DOUGLAS E. BEYER, Appellant.

15534.

Appellate Division of the Supreme Court of the State of New York, Third Department.

August 4, 2005.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered March 30, 2004, upon a verdict convicting defendant of the crimes of driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree.

At approximately 10:15 P.M. on April 25, 2003, a passing motorist noticed a pickup truck at a 45-degree angle in a ditch along a rural road. As the motorist pulled alongside the truck, she observed defendant sitting in the driver's seat, with the engine running, attempting to drive the truck out of the ditch. She asked if defendant was hurt, to which he responded that he was all right and did not need any help. Because she suspected that defendant was drunk and could not get the truck out of the ditch without help, she alerted Thomas Darling, the resident of a nearby house, and sent her husband to the scene. Her husband called the police. Darling observed the truck entirely in the four-foot-deep ditch, completely off the road's surface, at an angle so the passenger-side door was at the bottom of the ditch. He saw that defendant had slid toward the passenger side of the truck, but was trying to drive the truck out of the ditch with his left hand on the steering wheel and his left foot on the gas pedal. When defendant told Darling that he was all right and refused help, Darling observed that defendant seemed drunk because he slurred his words and had blood-shot eyes. In response to Darling's question regarding how the vehicle ended up in the ditch, defendant told him that his dog, who was present in the cab of the truck, had "messed me up."

The first police officer to arrive, Kevin Natalie, observed the truck at a 45-degree angle with the engine running and lights on. Natalie observed tire tracks in the dirt leading from the road to the ditch. He smelled a strong odor of alcohol inside the truck and noticed defendant's glassy eyes and slurred speech. Defendant refused to exit the vehicle and the dog acted in a menacing manner when Natalie tried to remove defendant. Following the arrival of two other officers, the police extricated defendant from the truck. Defendant was unsteady on his feet and refused to submit to field sobriety tests, stating that he was drunk. When questioned as to what happened, defendant told Natalie that he had been heading home and he had one drink of liquor in the truck, but he denied driving and refused to name the driver. An empty vodka bottle was later found in the truck. After defendant was arrested and provided with the driving while intoxicated (hereinafter DWI) refusal warnings (see Vehicle and Traffic Law § 1194 [2] [b]), he refused to submit to a chemical test to determine the alcohol content of his blood.

Following trial, the jury convicted defendant of DWI and aggravated unlicensed operation of a motor vehicle in the first degree. County Court denied his motion to set aside the verdict, then sentenced him to 2 to 6 years in prison on the DWI charge and 1 1/3 to 4 years on the aggravated unlicensed operation charge. Defendant appeals.

Legally sufficient evidence established that defendant was operating a motor vehicle on a public highway while intoxicated. A person can be prosecuted for DWI upon, among other places, "public highways" (Vehicle and Traffic Law § 1192 [7]). Defendant contends that the proof was insufficient because there was no testimony that he drove on the roadway itself, only that he attempted to move the vehicle from the ditch and a ditch is not part of a public highway. The Vehicle and Traffic Law broadly defines a public highway as "[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way" (Vehicle and Traffic Law § 134). Although not further defined in the Vehicle and Traffic Law, under the Highway Law the term highway is "deemed to include necessary sluices, drains, ditches" and similar accouterments (Highway Law § 2 [4]). Thus, a ditch is part of a highway (compare People v. Haszinger, 149 Misc 2d 856 [1991] [car six feet into grassy lawn off parkway exit ramp was on public highway for DWI purposes]).

While the truck apparently never moved when defendant tried to drive it out of the ditch, due to it being inextricably stuck, "the term `operate' as used in the Vehicle and Traffic Law is broader than the term `drive' and extends to a situation where a motorist begins to engage the motor for the purpose of putting the vehicle into motion" (People v. Totman, 208 AD2d 970, 971 [1994] [citation omitted]; see People v. Prescott, 95 NY2d 655, 662 [2001]; People v. Alamo, 34 NY2d 453, 458-459 [1974]). Several witnesses testified that they observed defendant in the vehicle, with the engine running and lights on, attempting to drive the truck out of the ditch, sufficiently proving that he operated the vehicle in that part of a public highway (see People v. Totman, supra; People v. Marriott, 37 AD2d 868 [1971]).

The evidence of defendant's impaired condition and refusal to submit to a chemical test was sufficient to prove his intoxication (see ...