People v. LaPlante
| Decision Date | 18 February 1975 |
| Citation | 81 Misc.2d 34,365 N.Y.S.2d 392 |
| Parties | The PEOPLE of the State of New York v. George H. LaPLANTE, Defendant. |
| Court | New York Justice Court |
The defendant was arrested on September 7, 1974 in the Town of Tonawanda, New York and charged with Driving While Intoxicated, in violation of Section 1192, subd. 3 of the Vehicle and Traffic Law. He was tried before the undersigned without a jury on January 7, 1975. At the conclusion of the trial the court reserved decision.
Prior to the commencement of the trial a Huntley Hearing was held for the purpose of determining whether defendant's oral statement that he was driving should be suppressed. It was clear from the evidence at that hearing that no Miranda warnings were given to the defendant prior to the time the admission was made. On this basis defendant's attorney moved to suppress and we reserved decision.
Based upon the reasoning of the court in People v. Alexander, 57 Misc.2d 462, 293 N.Y.S.2d 138, the motion to suppress is now denied. Where a police officer is investigating a traffic accident and asks general questions as to what occurred, Miranda warnings are not required since the questioning has not reached the custodial stage. See also New York Criminal Practice, Volume 3, pages 20--36.
Patrolman John Murphy arrived upon the scene of the accident in which the defendant was allegedly involved at approximately 4:00 A.M. on September 7, 1974. This was in response to a radio call he had received from headquarters. He found Mr. LaPlante at the wheel of a 1970 Buick automobile in the extreme right-hand, northbound lane on Eggert Road, a four-lane highway, approximately ten to twelve feet behind another car. Both of these automobiles were damaged, with the damage to defendant's vehicle in the front and the damage to the other vehicle in the rear. At the time he appeared in court he could not recall whether defendant's engine was still running when he arrived on the scene or whether the keys were in the ignition. He did remember having had a conversation with the defendant who acknowledged that he had been driving the vehicle in which he was then seated behind the wheel.
At that time Officer Murphy noticed something unusual about the defendant's condition. He asked him to get out of the car and asked for his license and registration, at which time defendant stumbled. The officer described the defendant's condition as He also referred to his speech as being 'slurry, not normal', and observed that his breath smelled of alcohol, that his clothes were in disarray, that his shirt was hanging out, and that he appeared very sloppy. He then read him his rights.
After placing defendant's hands in cuffs behind his back, he put him in the rear seat of his police vehicle and took him to headquarters. He radioed ahead to have the breathalyzer warmed up.
After the defendant had been in the I.D. room for approximately fifteen to twenty minutes the breathalyzer test was administered by Lt. David Evans and a reading was taken which showed 0.21 of one per centum alcohol in defendant's blood. From the examination and cross-examination of the breathalyzer operator I am satisfied that the test was properly administered.
After the close of People's case, defendant's attorney rested and moved to dismiss on the following grounds: 1) that defendant was not advised of his rights prior to the time of his arrest; 2) that there was no evidence of defendant's having operated the motor vehicle in which he was found seated; 3) that there was no proof that defendant was under the influence of alcohol at the time of the accident; 4) that the information was insufficient as a matter of law; and 5) that the evidence given by the breathalyzer operator should have been stricken. The court reserved decision on all these motions. After a review of all the evidence the motions are now denied.
The principal question to be resolved at this time is essentially a simple one. Is there a difference under the law between driving while intoxicated and driving while impaired? The subject was discussed while this court approximately a year ago in People v. Jones, reported at 77 Misc.2d 33, 352 N.Y.S.2d 771. It involved a similar accident on the same highway. Since rendering that decision I have had occasion to speak to numerous attorneys, judges, newspaper reporters, state legislators and laymen and I am now more convinced than ever that there is no legally defined difference between driving while impaired (Section 1192, subd. 1) and driving while intoxicated (Section 1192, subd. 3).
The source of the problem was the action of the New York State Legislature in 1960 creating the new concept of driving while ability impaired. Prior to that time, in order to remove a drinking driver from the highway, the People were required to prove that he was intoxicated. There was a presumption that he was intoxicated if he had .15 of one per centum alcohol in his blood. Under the new law if the prosecutor could prove that a driver had .10 of one per centum of alcohol in his blood, he was then presumed to be guilty of the traffic infraction of driving while impaired and his license could be suspended for sixth days. Neither the Uniform Vehicle Code nor the laws of many other states try to follow the New York theory. They generally prohibit driving under the influence of alcohol.
I am not sure how many drinking drivers were removed from the road as a result of this new concept. I am very sure, however, that prosecutors continued to have trouble convicting drivers of the misdemeanor of driving while intoxicated. Recognizing this, the Legislature once more amended Section 1192 of the Vehicle and Traffic Law in 1970 by eliminating the presumption of intoxication at .15 of one per centum alcohol. Thereafter it was a misdemeanor for a driver to have that amount of alcohol in his blood, regardless of whether he was intoxicated. The statute was later amended to reduce the amount required to prove this misdemeanor to .12 of one per centum and then to .10 of one per centum.
At no time has the Legislature tried to define in words the difference between driving while intoxicated and driving while impaired. Its decision in 1970 to remove the 'presumption of intoxication' created the problem we now face or made it more difficult to solve. Each judge to whom I have spoken has his own version of the difference or admits he can't define it.
The leading case on the subject of driving while intoxicated is People v. Weaver, 188 App.Div. 395, 177 N.Y.S. 71. In this case decided by the Third Department on June 30, 1919, the court stated in part:
"Hence for the purposes of the statute under which defendant is convicted, he is intoxicated when he has imbibed enough liquor to render him incapable of giving that attention and care to the operation of his automobile that a man of prudence and reasonable intelligence would give' . . . Intoxication within the meaning of this statute Means such a condition as impairs to some extent, however slight it may be, the ability of a person to operate an automobile.' (Emphasis added.)
In People v. Albin reported in the New York Law Journal on May 8, 1964, p. 20, col. 5, the defendant was charged with the crime of driving while intoxicated. His attorney requested the court to charge the infraction of operating while ability impaired as an included offense of which the defendant might be found guilty by the jury. The court refused to so charge. In reversing the Appellate Court ...
To continue reading
Request your trial
-
People v. Mertz
....... 3 Only one State has so held (State v. Rollins, 141 Vt. 105, 444 A.D.2d 884; see also, State v. Dumont, 146 Vt. 252, 499 A.2d 787). Dictum to like effect will be found in People v. LaPlante, 81 Misc.2d 34, 365 N.Y.S.2d 392, and People v. Jones, 77 Misc.2d 33, 352 N.Y.S.2d 771. Under an early version of the statute it was held that "intoxication and operation must be simultaneous or there is no crime" (People v. Strauss, 260 App.Div. 880, 881, 22 N.Y.S.2d 880). . 4 Such a chart is ......
-
People v. McMillan
......LaPlante, 81 Misc.2d 34, 365 N.Y.S.2d 392; People v. Alexander, 57 Misc.2d 462, 293 N.Y.S.2d 138). The facts in People v. Alexander, supra, are very similar to the facts in this case. There a trooper came upon an accident, noticed the defendant in a disheveled condition, inquired as to ......
-
People v. Kappas
...... In his brief, defendant quotes language from People v. LaPlante (1975), 81 Misc.2d 34, 365 N.Y.S.2d 392, which indicates that the State must prove the defendant's actual BA reading at the time he was driving to convict him of the charges based on a specific BA [120 Ill.App.3d 129] reading. We note that no other court in New York has come to a similar ......
-
People v. Graser
......3 can be convicted of sec. 1192 sub. 1, absent chemical test results, upon a trial. We do not rule whether for plea negotiations, sub. . Page 1014. 1 is a proper lesser included offense, under the same conditions. This court is not unmindful of the decisions in People v. LaPlante, 81 Misc.2d 34, 365 N.Y.S.2d 392, and People v. Jones, 77 Misc.2d 33, 352 N.Y.S.2d 771. However, this court finds that as interpreted herein, sec. 1196 V & T does not render sec. 1192 sub. 3 so vague as to constitute a violation of due process. Therefore, we find that sec. 1192 ......