People v. Kovacik

• Decision Date: 04 March 1954
• Citation: 205 Misc. 275
• Parties: The People of the State of New York, Plaintiff,<BR>v.<BR>Henry Kovacik, Defendant.
• Court: New York Court of Appeals Court of Appeals

205 Misc. 275

The People of the State of New York, Plaintiff,

v.Henry Kovacik, Defendant.

March 4, 1954.

Frank S. Hogan, District Attorney (F. Bolton Elwell, Jr., of counsel), for plaintiff.

Louis L. Roos and Francis X. McDermott, Police Department Legal Bureau, amici curiæ.

Harvey Cohen and Harvey D. Silton for defendant.

HORN, M.

The defendant is charged with a violation of subdivision 5 of section 70 of the Vehicle and Traffic Law of the State of New York, in that on November 17, 1953, at about 5:05 A.M., he did operate a motor vehicle along the Henry Hudson Parkway at 96th Street, a public highway in the County, City and State of New York, while he was in an intoxicated condition.

Subdivision 5 of section 70 of the Vehicle and Traffic Law of the State of New York provides: "5. Operating motor vehicle or motor cycle while in an intoxicated condition. Whoever operates a motor vehicle or motor cycle while in an intoxicated condition shall be guilty of a misdemeanor. Whoever operates a motor vehicle or motor cycle while in an intoxicated condition after having been convicted of operating a motor vehicle or motor cycle while in an intoxicated condition shall be guilty of a felony and shall be punishable by imprisonment for not less than sixty days nor more than two years or by a fine of not less than two hundred dollars nor more than two thousand dollars, or by both such imprisonment and fine. Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person arrested for operating a motor vehicle or motor cycle while in an intoxicated condition, the court may admit evidence of the amount of alcohol in the defendant's blood taken within two hours of the time of the arrest, as shown by a medical or chemical analysis of his breath, blood, urine, or saliva. For the purposes of this section (a) evidence that there was, at the time, five-hundredths of one per centum, or less, by weight of alcohol in his blood, is prima facie evidence that the defendant was not in an intoxicated condition; (b) evidence that there was, at the time, more than five-hundredths of one per centum and less than fifteen-hundredths of one per centum by weight of alcohol in his blood is relevant evidence, but it is not to be given prima facie effect in indicating whether or not the defendant was in an intoxicated condition; (c) evidence that there was, at the time, fifteen-hundredths of one per centum, or more, by weight of alcohol in his blood, may be admitted as prima facie evidence that the defendant was in an intoxicated condition."

To enable peace officers to enforce this section effectively the Legislature in 1953 enacted section 71-a of the Vehicle and Traffic Law which provides as follows: "§ 71-a. Chemical Tests. 1. Any person who operates a motor vehicle or motor cycle in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood provided that such test is administered at the direction of a police officer having reasonable grounds to suspect such person of driving in an intoxicated condition. If such person refuses to submit to such chemical test the test shall not be given but the commissioner shall revoke his license or permit to drive and any nonresident operating privilege. 2. Upon the request of the person who was tested, the results of such test shall be made available to him. 3. Only a duly licensed physician acting at the request of a police officer can withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of a urine, saliva or breath specimen. 4. The person tested shall be permitted to have a physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer."

The defendant elected to have his trial before a City Magistrate holding a Court of Special Sessions.

On the trial, patrolmen Wesley Bray, driver, and Edward Corbett, recorder, testified that on November 17, 1953, at about 5:05 A.M., while on traffic assignment patrolling the Henry Hudson Parkway, and following a speeding car, they observed a Pontiac automobile ahead and proceeding south in the act of pulling up to the right-hand curb of the highway and stopping, at about West 96th Street. The officers continued on, apprehended the speeding car at about 79th Street, issued a summons to the driver, and about ten minutes later returned to the Pontiac car which was in about the same location where it had stopped, to inquire whether the driver had a flat tire or was in need of assistance.

The defendant was found asleep behind the wheel, with the motor turned off, but the headlamps were still lighted. After shaking him hard, he was finally awakened. When asked whether he had had any trouble, he said "No," but when asked why he was parked, he couldn't give any logical answer. Asked where he was going, he said, "Ardsley." It was observed that his speech was slurred, his eyes were bloodshot, and he smelled of alcohol. After being told to get out of his car he was directed to walk. It was observed that he was weaving, stumbling and staggering from side to side. No one else was in the car, and the defendant admitted he was the driver. At that point officer Bray felt that the defendant was not in condition to drive a car so he was placed under arrest, taken to the 26th Precinct on West 135th Street, Manhattan, where after a sobriety test he was booked for driving while intoxicated.

The sobriety test was given about thirty minutes after his apprehension and was conducted by officer Bray in the presence of a police lieutenant. Asked where he was going, he replied, "Ardsley, upstate." Asked, "Where are you now?" he replied, "Around the George Washington Bridge." Asked whether he had been drinking, he replied, "I drink." Asked, "What did you drink?" he replied, "Mostly beer." Asked, "What quantities?" he replied, "I had about eight beers and one shot." He said he started drinking at about 7:00 P.M. that evening and stopped at about 2:33 A.M. He said that he had a pastrami sandwich and some coffee at about 1:00 A.M. He said that he had no sleep that night, and about four hours the night previous. He also stated that he had had nothing to drink after the officers first saw him.

The observations of the defendant during the test show:

1. Odor of breath — moderately alcoholic.

2. Color of face — normal.

3. Eyes — bloodshot.

4. Pupils — normal.

5. Clothes — orderly.

6. Attitude — polite and cooperative.

7. No action such as profuse hiccoughing, belching — no actions at all.

8. Balance — fair.

9. Walking and turning — fair.

10. Finger to nose test (both arms) — sure.

11. Picking up coins — sure.

12. Speech — slurred.

Officer Bray who conducted the sobriety test testified that in his opinion the defendant was under the influence of intoxicating beverages and was unable to drive safely.

After the sobriety tests at the 26th Precinct he was taken to the 18th Precinct on West 54th Street, Manhattan, for the purpose of testing on the Harger drunkometer. There at about 6:15 A.M. he was taken before detective James Osterburg, a chemist of the New York City police department's laboratory, who conducted the drunkometer test. For over eleven years this detective has been responsible for various scientific examinations of evidence, chemical, physical and microscopic. Since March, 1953, he was assigned to undertake a study of the problem of testing drinking drivers, and has been in charge of training men in the unit, now known as the intoxicated drivers testing unit of the New York City police department. In connection with this part of his duties in the laboratory, he is in charge of the control of the chemicals that are used in these tests, their preparation and use. He holds a B.A. degree, with a major in chemistry, from Brooklyn College, 1938. He has completed the course requirements for a master's degree in chemistry at the same college. In 1947, he attended a course of instruction under the auspices of the Indiana State Police, given by Professor R. N. Harger, who conceived and designed the drunkometer, and who is a member of the faculty of the medical school of Indiana University. He also took similar courses, under the auspices of Northwestern University Traffic Institute, at New York University, given by Dr. Kurt Dubowski and Lieutenant Borkenstein of the Indiana State Police. Defendant's counsel conceded him to be qualified.

Before giving the test the defendant was asked by him whether he would take a chemical test to determine whether he was under the influence of liquor, to which he said "Yes." However, detective Osterburg believed he told the defendant that if he did not take the test his license would be suspended. On cross-examination he testified that he did not tell the defendant that he had a right to have his own doctor present or to make this examination.

Detective Osterburg prepared the drunkometer according to procedure taught by Dr. Harger, and at 6:25 A.M. the defendant inflated a balloon with his breath, which in turn was attached to the drunkometer, and the test was run. When the "end-point" was reached the test was stopped. The ascarite tube was reweighed, the displacement in the gasometer was read and detective Osterburg, in accordance with the formula of Dr. Harger, calculated therefrom the percentage of alcohol present in the defendant's blood. The result showed that there was 0.19% of alcohol in his blood at the time of the test.

In answer to a hypothetical question Dr. Harger testified that the same test run at about 4:55 A.M. would have showed about .21 to .22% of blood alcohol. He also testified that in his opinion the defendant was intoxicated, that he was a very unsafe driver and that his ability was considerably impaired.

For his defense the...