People v. Kahn

• Decision Date: 28 February 1994
• Citation: 610 N.Y.S.2d 701,160 Misc.2d 594
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Samuel KAHN, Defendant.
• Court: New York District Court

Page 701

610 N.Y.S.2d 701

160 Misc.2d 594

The PEOPLE of the State of New York, Plaintiff, v. Samuel KAHN, Defendant.

District Court, Nassau County,

First District, Criminal Part.

Feb. 28, 1994.

Denis Dillon, Dist. Atty. of Nassau County, for plaintiff.

Marvin Hirsch, Mineola, for defendant.

ROY S. MAHON, Judge.

The defendant is charged with an act of driving while impaired by drugs in violation of section 1192(4) of the New York State Vehicle and Traffic Law. Specifically, the information filed herein alleges that on March 31, 1993, at about 10:20 p.m., northbound on Glen Cove Road in Glen Head, County of Nassau, State of New York, the defendant operated a motor vehicle while his ability to operate said vehicle was impaired by the use of a drug, as defined by the Vehicle and Traffic Law. This case first appeared on the Court's calendar on April 1, 1993 and was successively adjourned until February 1, 1994. At that time, after having waived his right to a trial by jury, this Court commenced a non-jury trial of the charge pending against the defendant. On February 15, 1994, the non-jury trial of the defendant by this Court was concluded. After carefully considering the testimony and evidence adduced at trial, the Court now makes the following findings of fact and conclusions of law.

The People's direct case was comprised, in large measure, of testimony from Police Officer James Read, Police Officer Philip Fox, and Police Officer Joseph Lynch. Police Officer Read testified, in substance, that on the evening of March 31, 1993, while operating on routine motor patrol, he observed the defendant's vehicle traveling northbound on Glen Cove Road in Glen Head, New York. The defendant's vehicle was weaving on the roadway and, at one point, left the paved roadway onto a nearby median. After stopping the defendant's vehicle, Officer Read asked the defendant to produce his license, registration and insurance card. As the defendant exited the car, he staggered and swayed and exhibited bloodshot and glassy eyes. He also exhibited slurred speech and some difficulty in producing the documents requested by the officer. Officer Read also detected the slight odor of an alcoholic beverage on the defendant's breath. During the course of Officer Read's discussion with the defendant, the defendant indicated that he had recently returned from a long trip and taken medication. The defendant did not specify the medication which he had taken nor did he indicate when it was ingested. He also admitted to consuming a glass of wine sometime earlier in the evening. Officer Read then administered a series of field sobriety tests to the defendant. Following these field sobriety tests, the defendant was handcuffed and transported to the Nassau County Police Department's headquarters for further testing.

Police Officer Fox assisted in the defendant's arrest. He, too, observed the defendant's glassy eyes and unsteady stance. At the Central Testing Unit at the Nassau County Police Department's headquarters, he spoke with defendant. He detected the smell of alcohol on the defendant's breath. He also invoiced the defendant's property consisting of units of foreign currency. He indicated that the defendant had no difficulty identifying the value of the units of foreign currency or making telephone calls to third parties not present. The defendant was then administered a breath examination with the assistance of a device known as the Intoxilyzer 5000. Utilizing infrared technology, this device can detect the presence of alcohol on a person's breath and convert it to a reading of the alcohol in their bloodstream. The Intoxilyzer 5000 test failed to reveal the presence of alcohol in the defendant's bloodstream and returned a reading of ".00." Officer Lynch, who had administered the Intoxilyzer 5000 test, then asked the defendant to provide a sample of his urine and to undergo a second series of field sobriety tests. During his discussion with the defendant, he noticed that the defendant had some difficulty speaking. He said the defendant also indicated that he had returned recently from a long trip and had taken a medication known as Ciprin. Officer Lynch testified that the defendant appeared to have difficulty understanding the instructions for the field sobriety tests and poorly performed the tests, in his opinion. Officer Lynch then recommended that the defendant seek medical assistance from a physician. A subsequent laboratory analysis of the defendant's urine revealed the presence of benzodiazepine.

The defendant testified on his own behalf. He indicated that he is employed as an economist and had recently returned from a location near the coast of South Africa on a 10 day business trip. His departing and return flight each took approximately 20 hours to complete and subjected him twice to a 9 hour difference in time zones. He further indicated that he had been in the United States for approximately 3 to 4 days after his return trip when he was arrested for the instant offense. He also testified that he is a user of a drug identified as Dalmane, a prescription medication used to induce sleep, also known as flurazepam.

At trial, the defendant stated that on the evening of March 31, 1993, he had eaten dinner at a restaurant located in the borough of Manhattan in New York City. With dinner he had consumed a glass of wine. After dinner he left New York City in his daughter's automobile with which he was somewhat unfamiliar. Suffering from fatigue from his recent trip abroad, and stress related to the general nature of his employment, the defendant indicated that he engaged in the conduct which drew Officer Read's attention to his vehicle. He also indicated that his unfamiliarity in the operation of his daughter's car was a contributing factor to his erratic operation of the vehicle. It is vital to note that the defendant testified that the last time he had taken the prescription medication, Dalmane, was approximately 48 hours before his arrest. The defendant's testimony, in substance, corroborated the People's testimony regarding the inventorying of his property, his telephone call to his attorney, the administration of the Intoxilyzer test, the ".00" reading, the administration of the field sobriety tests, and his...