People v. Graser

• Decision Date: 30 March 1977
• Citation: 90 Misc.2d 219,393 N.Y.S.2d 1009
• Parties: PEOPLE of the State of New York, Plaintiff, v. Douglas B. GRASER, Defendant.
• Court: New York Town Court

Page 1009

393 N.Y.S.2d 1009

90 Misc.2d 219

PEOPLE of the State of New York, Plaintiff, v. Douglas B. GRASER, Defendant.

Amherst Town Court, Erie County.

March 30, 1977.

Edward C. Cosgrove, Dist. Atty., by Manuel S. Wortzman, Assistant District Attorney of Erie County, for the People.

Maurice L. Sykes, Buffalo, for defendant.

DECISION AND ORDER

SHERWOOD L. BESTRY, Town Justice.

Defendant was arrested on November 8, 1976, for a Violation of the following sections of the Vehicle and Traffic Law, 1180(e), (Imprudent speed), 401 sub. 1a (Operating an unregistered vehicle), 1193--a (Refusal of breath screening test) and 1192 sub. 3 (Driving while intoxicated).

Defendant moves to dismiss the charges of sec. 1193--a and 1192 sub. 3, pursuant to sec. 170.35 CPL on the grounds that the statutes defining the offenses are unconstitutional.

With respect to sec. 1192 sub. 3, defendant argues that the statute is so vague that it thereby deprives defendant of due process, and is therefore violative of the U.S. Constitution, 14th Amendment.

As has been declared by various courts, time and again, the leading case on the subject of the definition of Intoxication (when applied to the subject of operating a motor vehicle) is People v. Weaver, 188 App.Div. 395, 177 N.Y.S. 71 decided in 1919.

Fifty-eight years ago the Legislature did not by statute define Intoxication and fifty-eight years later it has still not done so.

The Appellate Division--3rd Dept. (Cochrane J.) formulated its own definition in People v. Weaver, supra.

That definition was:

'One shall not be affected by alcoholic beverage to such an extent as to impair his judgment or his ability to operate an automobile.' 'Intoxication . . . means such a condition as impairs to some extent, however slight it may be, the ability of a person to operate an automobile.'

This definition has been followed by the Courts of this state down to the present time; and there is no difficulty with the definition. If the driver's ability to operate is impaired, he is intoxicated. To determine whether there is an impairment, observational testimony is necessary at a trial. Furthermore, a driver is put on notice that if he imbibes alcoholic beverages to the extent that his ability is impaired, he violates the statute.

In 1960, the Legislature enacted chapter 184, and added a new offense, that of driving while one's ability Was impaired by the use of alcohol. Section 1192 V & T was amended and the new offense was inserted as subdivision '1'.

The new offense as differentiated from driving while intoxicated, was only a traffic infraction.

As stated in the statute and by this Court in People v. Seger, 63 Misc. 921, 314 N.Y.S.2d 240, there could be no conviction under sec. 1192 sub. 1, unless the defendant first submitted to a chemical test, and the results of such test showed ten hundredths of one percent or more alcohol in the blood.

Observational testimony was insufficient. A chemical test was a necessity.

Subdivision 3 of sec. 1192 was added and provided that evidence of ten hundredths of one percent or more of alcohol was prima facie evidence that defendant's ability to operate was impaired.

Subdivision 3 retained the provision of the former statute that if the chemical test showed 15 hundredths of one percent or more, that was prima facie evidence that the defendant was intoxicated; and that .06 of 1% Thru and including .14 of 1% Was relevant evidence on the question of intoxication.

Thus, at that point in time, there were two offenses--one, a traffic infraction--driving while one's ability was impaired by alcohol which could result in a conviction only after a chemical test and, two, driving while intoxicated, a misdemeanor, which could result in a conviction based on observational testimony alone, or observational testimony buttressed by a chemical test.

Prior to the enactment of subdivision 1 of Sec. 1192, juries were reluctant to convict a driver of the crime of driving while intoxicated, and by creating a less serious offense of driving while one's ability was impaired, the Legislature made it possible, in theory, for prosecutors to obtain convictions.

Subdivision 1 provided a scientific, ascertainable basis for the trier of the facts, and was not in any sense vague.

However, the seeds for future problems arose in the choice of words by the Legislature, 'ability impaired by the use of alcohol'.

Ability impaired by the use of alcohol had been determined to mean driving while intoxicated in People v. Weaver, supra, but the name of the offense prescribed by subdivision 1, Sec. 1192 was unimportant, in that there was a statutory standard. That is, there must be a chemical test, and the results must be no less than ten hundredths of one percent of alcohol in the blood.

By the laws of 1970, Chapter 275, Sec. 1192 V & T was repealed and An ENTIRELY NEW SEC. 1192 WAS ENACTED. Sub. 1 was shortened, and provided:

'no person shall operate a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol.' It will be noted that reference to a chemical test was eliminated in subdivision one. A new subdivision 2 was created, which provided that no person should operate a motor vehicle while he has 15 hundredths of one percent or more by weight of alcohol in his blood, as determined by a chemical test. Neither the words 'intoxicated' nor 'impaired' were used in subdivision 2.

Thus, a new offense--a misdemeanor--of operating with 15 hundredths of one percent was thereby created. The offense consisted of having a certain minimum quantity of alcohol in the blood.

Subdivision 3 of the new sec. 1192 retained the old misdemeanor of driving while intoxicated.

A new sec. 1195, was enacted, by the same chapter. It retained the 10 hundredths of one percent or more as prima facie evidence of driving while one's ability was impaired, by the consumption of alcohol. In addition for persons over 21 years of age, evidence of .06 hundredths of 1% Through and including .09 hundredths of 1% Was to be considered relevant evidence of a violation of subdivision one. For persons under 21 years, .05 of 1% Was to be given prima facie effect.

For intoxication, 10 hundredths of one percent or more (instead of .06 of 1%--.14 of 1%) now became relevant evidence but not prima facie evidence on the question of intoxication.

By the same chapter, 1196 V & T was created, which reads as follows:

'A driver may be convicted of a violation of subdivisions one, two or three of section eleven hundred ninety-two, notwithstanding that the charge laid before the court alleged a violation of subdivision two or three of section eleven hundred ninety-two, and regardless of whether or not such conviction is based on a plea of guilty.'

Chapter 275, Laws of 1970 created the problems with which we are now faced.

Subsequent amendments to sec. 1192 & 1195 by Chapter 495, Laws of 1971, and by Chapter 450, Laws of 1972, and by Chapter 248, Laws of 1974, merely changed the quantity requirements of alcohol content in the blood, but the basic statutes as enacted by the Laws of 1970, are unchanged.

The 1971 amendment amended subdivision 2, by reducing the minimum illegal quantity of alcohol to .12 of 1%.

The laws of 1971 amended sec. 1195 in that .10 of 1% Was reduced to .08 of 1% As prima facie evidence of being impaired. The provision that .06 of 1% Through and including .09 of 1% Constituted relevant evidence of being impaired was reduced to .06 and .07 of 1%. All distinctions between persons under and over 21 years were deleted.

For intoxication, .08 of 1% Or more now became relevant evidence, instead of .10 of 1%.

By the laws of 1972, subdivision 2 of sec. 1192 was amended by reducing the minimum illegal quantity of alcohol from .12 of 1% To the present .10 of 1%.

With respect to the question of being impaired, the subject of relevant evidence was deleted, but .08 of 1% Was retained as the minimum quantity for prima facie evidence.

With respect to intoxication, all reference to minimum quantities as constituting relevant or prima facie evidence was deleted.

By the laws of 1974, with respect to being impaired, relevant evidence was again inserted, and .08 and .09 of 1% Was again the quantity.

Throughout the history of the state, .05 of 1% And less is prima facie evidence that a defendant is neither impaired nor intoxicated.

The purpose of tracing the foregoing history is to show that the Legislature was meticulous in delineating the quantitative requirements of alcohol in the blood between driving while intoxicated, driving while impaired, and driving with a certain proscribed amount of alcohol in the blood.

Sec. 1196, set out hereinabove, enacted in 1970 has created constitutional issues.

Making driving while impaired a lesser included offense of subsection 2 of sec. 1192 creates no problems. Quantitative standards are set up for each offense. There are definitive boundaries and there is no vagueness.

Moreover, if the intent of the Legislature in establishing the criterion of relevant evidence to determine if a defendant was driving while impaired means that observational testimony, coupled with the evidentiary results of the chemical test, may be taken into consideration by the trier of the facts, that also poses no problems. There then is a statutory quantitative standard, which eliminates vagueness, between sec. 1192 sub. 3 and 1192 sub. 1.

However, if sec. 1196 is interpreted to mean that a defendant who is charged with a violation of sec. 1192 sub. 3 and either refuses a chemical test, or in a rare instance, is not offered one, so that there is no evidence of the results of chemical test, can be convicted of either sec. 1192 sub. 3, or the lesser included offense of 1192 sub. 1, then the statutes are vague. By virtue of the definition of intoxication set down in People v. Weaver, supra, there is no distinction between intoxication and impairment....