People v. Jones
| Decision Date | 24 January 1974 |
| Citation | 77 Misc.2d 33,352 N.Y.S.2d 771 |
| Court | New York Town Court |
| Parties | The PEOPLE of the State of New York, Plaintiff v. Delmar R. JONES, Defendant. |
The defendant Delmar R. Jones was arrested on July 21, 1973 by Patrolman J. T. Murphy of the Town of Tonawanda Police Department. He was given a summons for driving while intoxicated which is a misdemeanor under Section 1192, subd. 3 of the Vehicle and Traffic Law.
When arraigned he entered a plea of guilty. At the time he had no lawyer and indicated that he did not want one. The matter was adjourned for sentence at that time.
Prior to the date set for sentence, Attorney Richard Grimm appeared on behalf of the defendant and requested an opportunity to withdraw defendant's plea. Permission was granted and trial was thereafter had without a jury on December 4, 1973. At the conclusion the court reserved decision.
This defendant was allegedly involved in an accident on Eggert Road near the intersection of Sheridan Drive in the Town of Tonawanda on the evening of July 21, 1973. When Officer Murphy arrived on the scene the defendant was behind the wheel of a 1966 Pontiac automobile and the motor was still running. Other persons in the area told the officer that the defendant had been driving and that he was 'intoxicated'. Officer Murphy recited that the defendant's 'speech was slurred, his eyes were glassy, his gait unsteady and his breath smelled strongly of alcoholic beverages.'
After some questioning, the defendant admitted to Officer Murphy that he had been driving. The said admission was the subject of a motion for suppression upon which the court also reserved decision.
In light of the original plea of guilty entered by the defendant and the observations of Officer Murphy at the scene, I am satisfied that the defendant was operating the vehicle in question on July 21, 1973. The motion to suppress is therefore academic at this point.
A blood alcohol test given at the Kenmore Police Department produced a reading of .28 percentum by weight of alcohol in the defendant's blood. For the reasons hereinafter stated, the court will not consider in detail objections raised to the qualifications of Captain Kane who administered the test.
The very serious question now confronting the court is how to determine whether the defendant violated Section 1192, subd. 1, Section 1192, subd. 2 or Section 1192, subd. 3 of the Vehicle and Traffic Law. There does not appear to be any standard in New York by which I can advise a jury or myself of the distinction between driving while one's ability is impaired by the use of alcohol and driving while intoxicated.
Prior to January 1, 1971, under Section 1192, subd. 2 of the Vehicle and Traffic Law, proof that a person had more than .15 percentum by weight of alcohol in his blood at the time a test was administered was prima facie evidence that he was driving while intoxicated. The test had to be administered within two hours after arrest. This presumption of intoxication was removed by amendment of the Vehicle and Traffic Law on January 1, 1971 and has never been reinstated. Without the benefit of such a presumption, the court must rely upon evidence of defendant's mental condition and physical co-ordination as well as the blood test. There will be instances where no reasonable doubt exists as to the defendant's intoxication. Nevertheless in many cases, it will be most difficult to detect the difference between driving while impaired and driving while intoxicated.
The manual provided to all Town Justices in New York by the Association of Towns suggests the following as a guideline:
'Definition of Intoxicated'
'It has been held that the operation of a motor vehicle while in an intoxicated condition is the operation of such a motor vehicle by a person who has imbibed alcoholic beverages to such an extent as to impair his judgment and his ability to operate a motor vehicle. It may be said that person is intoxicated for these purposes when he has imbibed enough alcoholic beverages to impair his ability to think and act clearly and when he has lost, even in part, the control of his mental and physical facilities necessary to give that attention and care to the operation of his motor vehicle that a man of prudence and of reasonable intelligence would give to it. Furthermore, before the defendant can be convicted, you must find beyond a reasonable doubt that the defendant's intoxicated condition was voluntary.
NOTE: A formal definition for Driving While Ability Impaired has not been formulated by statute or the courts.'
In the ancient Alabama Case of Holley v. State, 25 Ala.App. 260, 261, 144 So. 535, 536, the court stated:
When the legislature on January 1, 1971 removed the presumption of intoxication, Section 1192, subd. 2 was amended to read as follows:
'No person shall operate a motor vehicle while he has .15 of one per centum or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this chapter.'
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