People v. Van Tuyl

• Decision Date: 27 September 1974
• Citation: 79 Misc.2d 262,359 N.Y.S.2d 958
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert C. VAN TUYL, Defendant-Appellant.
• Court: New York Supreme Court

Page 958

359 N.Y.S.2d 958

79 Misc.2d 262

The PEOPLE of the State of New York, Respondent, v. Robert C. VAN TUYL, Defendant-Appellant.

Supreme Court, Appellate Term, Ninth and Tenth Judicial Districts.

Sept. 27, 1974.

George C. Stankevich, Southold, for appellant.

Henry G. Wenzel, III, Dist. Atty. (Ronald E. Lipetz, Asst. Dist. Atty., of counsel), for respondent.

Before HOGAN, P.J., and PITTONI and GAGLIARDI, JJ.

OPINION

JOSEPH F. GAGLIARDI, Justice.

This appeal raises the interesting question whether a person may be convicted under subdivision 1 of section 1192 of the Vehicle and Traffic Law, which proscribes operation of 'a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol', where the uncontroverted proof establishes that the impairment was caused by either use of medication or a combination of the use of medication and the results of the accident. On March 14, 1973, defendant was convicted under said statute upon a decision after a non-jury trial.

On July 4, 1972, during the early evening hours, defendant's vehicle collided with another automobile on New York Avenue in Suffolk County. Defendant brought his vehicle to a halt approximately 600 feet from the point of impact. Two police officers who arrived at the scene shortly after the accident stated that defendant's speech was slurred, on exiting from his car he leaned upon the vehicle and his breath smelled of alcohol. When informed of the accident defendant stated 'You must be kidding, I didn't have any accident.' Both officers stated that in their opinion defendant was not in control of his capabilities. Defendant was taken to his own physician's office and his doctor advised him not to have a blood test in view of the medication defendant was taking. No chemical tests were performed but the record is not clear whether defendant refused to take a test or whether the doctor declined to administer it. By way of an information defendant was thereafter charged with violation of sections 1192(3) (driving while intoxicated) and 600 (leaving the scene of an accident) of the Vehicle and Traffic Law. A motion made at the conclusion of the trial to dismiss the latter charge was subsequently granted.

Throughout the trial defendant contended that his impairment was caused by medication. Defendant suffers from an arthritic condition of the cervical spine and both knees. On July 1, 1972, his personal physician prescribed a drug, butazolidin alka, to alleviate defendant's pain. The prescription was filled on the same day in the form of fifteen tablets consisting of 100 milligrams per tablet. Defendant was instructed to take two pills daily but was not advised regarding potential adverse side effects that the medication might induce.

Through expert testimony of two physicians it was established that butazolidin alka is an 'anti-inflammatory agent' sometimes used for treatment of arthritis. However, its use is limited because scientific tests have proved that approximately 40 per cent of the persons using said drug have severe orientation problems. The adverse side effects that the drug has been found to cause include a 'confusional state,' lethargy, vertigo, unsteadiness afoot, blurred vision and possibly even slurred speech. The drug has a 'half life' interval of 36 to 72 hours which means that one-half of its dosage remains in the central nervous system so that potential adverse effects might not occur until the fourth or fifth day of continual medication. An average dosage of two tablets per day could cause the side effects mentioned above. The experts stated that a physician prescribing butazolidin alka should warn the patient not to drive an automobile. One of the expert witnesses, Dr. Hellman, testified that butazolidin is not one of the drugs specified in the then applicable section of the Vehicle and Traffic Law (section 114--a).

Defendant testified that he had no recollection of the events regarding the accident. Prior to July 1, 1972 he had never taken the medication butazolidin but on that day through July 4, 1972 he took two tablets daily. On July 4, 1972 he took his second pill at dinner and then went to a cocktail party where he remained approximately two hours, during which time he consumed two normal size beverages consisting of scotch and soda. The accident occurred shortly after defendant departed from the party. Defendant further stated that his physician failed to warn him about the potential side effects of the medication and, in fact, he experienced no adverse effects prior to July 4, 1972.

The parties stipulated that at the time of the accident defendant was 58 years of age, 6 foot 2 inches in height and weighed 220 pounds. Defendant's expert witnesses both testified that defendant could not have become intoxicated from the two drinks he consumed. One witness, Dr. Kantor, stated that the effects exhibited by defendant at the scene of the accident were caused by shock and the medication.

Upon the above proof the court adjudged defendant guilty of violating section 1192(1) of the Vehicle and Traffic Law, which is a traffic infraction (Vehicle and Traffic Law § 1800(a)). On March 23, 1973, defendant was fined $50. and his driver's license suspended for 60 days. Sentence has been syayed pending disposition of the appeal.

On this appeal defendant relies upon the landmark decision in People v. Koch, 250 App.Div. 623, 294 N.Y.S. 987, and argues that an operator may not be convicted of impairment by reason of alcohol where the proof establishes an accidental overdose of medication. The People argue that sister-state jurisdictions have passed on the issue raised and hold that the use of medication is not a defense to driving while impaired. The People further assert that the proof is sufficient to justify the conviction.

Subdivision 3 of section 1192 of the Vehicle and Traffic Law provides that 'No person shall operate a motor vehicle while he is in an intoxicated condition.' Violation of the cited statute is a misdemeanor (Vehicle and Traffic Law § 1192(5)). The quoted language emanates from the predecessor statute, Vehicle and Traffic Law section 70(5) (L.1933, ch. 290), and was construed in the leading case of People v. Koch, 250 App.Div. 623, 294 N.Y.S. 987. In Koch the defendant inadvertently took an overdose of the drug luminol which had been prescribed for him and was convicted of operating his vehicle while in an intoxicated condition. The Appellate Division, Second Department, unanimously reversed and held that the statutory interdiction applied only in cases of voluntary intoxication and did not encompass a mistaken overdose of a medicinal drug. However, the court further stated that '(t)he term 'intoxication' includes also the condition produced by excessive use of agencies other than alcoholic liquor, when they are taken voluntarily' (250 App.Div. at 625, 294 N.Y.S. at 989).

Cases of involuntary intoxication are virtually nonexistent (see, Shelburne v. State, 446 P.2d 56 (Okl.Cr.App.); Salzman v. United States, 131 U.S.App.D.C. 393, 405 F.2d 358; Hall 'Intoxication & Criminal Responsibility,' 57 Harv.L.Rev. 1045, 1056 (1944); 4a N.Y.Jur., Automobiles & Other Vehicles, § 624; cf. State v. Brown, 38 Kan. 390, 16 P. 259). ¹ The Koch rationale has been applied in other cases in this State and the rule may be summarized as follows: an operator of a motor vehicle may not be convicted of operating the vehicle in an intoxicated condition where the condition was caused by an overdose of a medicinal drug, although the drug was taken in combination with the consumption of liquor (People v. Butts, 21 Misc.2d 799, 201 N.Y.S.2d 926; see, People v. Migneault, 25 A.D.2d 697, 268 N.Y.S.2d 161 (especially request to charge contained in Record on Appeal (3rd Dept. No. 1742) which was approved by the Appellate Division); Anno. 142 A.L.R. 555, 561--562 'Driving While Intoxicated--Degree').

In 1966 section 1192 of the Vehicle and Traffic Law was amended (L.1966, ch. 963) which added a new subdivision (now subdivision 4) and provided that no person shall operate a motor vehicle while his ability to operate same 'is impaired by the use of a drug as defined in this chapter.' The legislation also added new section 114--a of the Vehicle and Traffic Law which defined the term drug as including either a depressant, hallucinogenic, narcotic or stimulant drug. ² It has been held that where the drug involved is not included in the statutory definition no conviction under the drug-impairment subdivision may be obtained (People v. Cheperuk, 64 Misc.2d 498, 315 N.Y.S.2d 203; People v. Wiley, 59 Misc.2d 519, 299 N.Y.S.2d 704; cf. People v. Calcasola, 76 Misc.2d 39, 349 N.Y.S.2d 958). At bar, it is to be noted that butazolidin is not included in section 114--a and the testimony established that its chemical properties would not fall within the statutory classifications. ²

Section 1196 of the Vehicle and Traffic Law authorizes a conviction under section 1192, subdivision 1 where the charge is a violation of subdivisions 2 (operating a motor vehicle while driver has .10 per centum of alcohol in blood) or 3. In essence, section 1196 inplies that impairment under section 1192(1) is a lesser offense of the charge of intoxication (see 1966 Opinions of Atty. Gen. (Inf.) 92; Criminal Procedure Law § 300.50; 1 Marks & Paperno, Criminal Law in N.Y. under the Revised Penal Law § 650.) Of course, impairment is considered a less serious crime (under section 1192(1) but not under section 1192(4)) where conviction may be obtained on proof of a lower degree of intoxication than is otherwise required (People v. Herzog, 75 Misc.2d 631, 348 N.Y.S.2d 510; People v. Kaeppel, 74 Misc.2d 220, 342 N.Y.S.2d 882).

Driving while intoxicated is a distinct offense, separate from other crimes in the Vehicle and Traffic Law that may emanate from the same act (People v. Kenda, 3 A.D.2d 80, 157 N.Y.S.2d 841). Violation of ...