People v. Robbins

• Decision Date: 15 July 1986
• Citation: 504 N.Y.S.2d 1006,132 Misc.2d 653
• Parties: PEOPLE of the State of New York v. Melissa ROBBINS.
• Court: New York Justice Court

Page 1006

504 N.Y.S.2d 1006

132 Misc.2d 653

PEOPLE of the State of New York v. Melissa ROBBINS.

Justice Court, Town of Greenburgh,

Westchester County.

July 15, 1986.

Carl A. Vergari, Dist. Atty., Westchester County, for the People; Nicholas C. Maselli, Jr., Asst. Dist. Atty., James V. Naso, Asst. Dist. Atty., of counsel.

Bacharach, Green & Bass, for defendant; Bernard Bacharach, White Plains, of counsel.

OPINION AND DECISION

ASCHER KATZ, Town Justice.

A drinker who drives no matter how skillfully, may be found guilty of driving while ability to do so is impaired by the consumption of alcohol.

Patrolman John Park of the Greenburgh Police Department saw defendant approach a stop sign on a local street. She was doing about 15 miles an hour. She did not come to a full stop. At the time of observation, the patrolman did not think that the defendant was intoxicated. He pulled her over about a quarter of a mile beyond the stop sign and he saw her brakelights were working. Her eyes were glassy and red. Her speech was slurred. She was unsteady on her feet. A strong odor of alcohol emanated from her breath. It was then that he determined she was intoxicated. After being notified of the charges, ¹ she became cocky, insulting, and abusive.

Defendant was employed as a bank customer representative. After work on the day in question, she consumed no more than four Seagrams and Seven Ups between the hours of 10:30 P.M. and 12:30 A.M. with a girl friend. She herself stated that she was not impaired in her driving. She did feel a little tired and wanted to go home. She admitted that as she drove at about 15 miles an hour, knowing the road quite well, she did make a rolling stop and was pulled over immediately. She did not believe that she was swaying, or that her speech was slurred, and she stated that when she does become upset she does swear. In her opinion, a sign of intoxication was being dizzy and sick. While she did not normally roll through stop signs, at the late hour in question, she saw no danger.

It is the defendant's position that the statutory presumption of impairment set forth in Sec. 1195-2 Vehicle and Traffic Law does not apply, because the reading on the breathalyzer as stipulated by the parties was .10%. A reading of more than .07% but less than .10% shall be given prima facie effect in determining whether the driver's ability is impaired by the consumption of alcohol. The defendant argues that no prima facie effect shall be given because the reading of .10% is outside the precise limit of the statute. It is arguable that the prima facie effect fails to arise because the reading of .10% is higher than the range stipulated. But the Court may draw an inference that the defendant was under the influence of alcohol because the reading of .10% is relevant evidence of intoxication.

In any event the defendant claims that because the operation of the vehicle during the period of observation by the police officer was not impaired in any way, this is conclusive as to the People and she cannot therefore be found guilty of the violation of driving while ability was impaired by the consumption of alcohol.

The defendant's arguments are compelling and persuasive, but do not resolve the issues before the Court.

In People v. Herzog, 75 Misc.2d 631, 348 N.Y.S.2d 510, the police officer observed the defendant's condition only after the occurrence. The Court there held that the evaluation of the police officer of the...