People v. Wagonseller
| Citation | 25 Misc.2d 217,205 N.Y.S.2d 933 |
| Parties | PEOPLE of the State of New York v. Raymond H. WAGONSELLER Jr., Defendant. |
| Decision Date | 06 October 1960 |
| Court | New York City Court |
Robert T. Booth, Plattsburgh, for defendant.
Defendant was charged with a violation of Section 1192, subd. 1 of the Vehicle and Traffic Law, in unlawfully and knowingly operating a motor vehicle while his ability to operate such motor vehicle was impaired by the consumption of alcohol.
This is a new section of the Vehicle and Traffic Law which became effective October 1, 1960. The arrest was made one hour and five minutes after this new law went into effect.
The Information charges that the defendant drove a 1948 Pontiac sedan on a street in the City of Plattsburgh while his ability was impaired by alcohol; that the police officer observed that the defendant's eyes were bloodshot and he was not steady on his feet. It further alleges that the defendant admitted having been drinking. Attached to the Information was a Police Department form stating that the defendant refused to take the blood test required by Section 1194 of the Vehicle and Traffic Law.
Defendant, through his counsel, moved that the Information be dismissed arguing that new Section 1192 recites that 'no conviction shall be had under this subdivision after entry of a plea of not guilty unless it is shown by means of a chemical test * * * that there was * * * ten-hundredths of one per centum or more by weight of alcohol in his blood' (Italics supplied); that since no chemical test was available to establish the minimum percentage of alcohol required by the Statute, a dismissal must follow.
In view of the specific language of the Statute, which requires that no conviction may be had except by evidence resulting from a chemical test of the vehicle operator's blood, the Court feels it has no choice but to dismiss the Information, since from the Information and attached papers it appears that no blood test was ever made. The fact of the defendant's refusal is undisputed.
It does not necessarily follow that violators of this new Section have found a means of escaping a penalty by refusing to take a blood test. It may very well be that the Legislature, by holding the Courts to this requirement of proof for conviction, felt that the administration of punishment should be left to the Bureau of Motor Vehicles in its administrative capacity, to suspend or revoke licenses for failing to take blood...
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Bowers v. Hults
... ... All of the requisites of section 1193 were met by the arresting officer. This arrest was 'unquestionably lawful'. (People v. Belcher, 302 N.Y. 529, 533, 99 N.E.2d 874 (1951); Taylor v. Kelly, 5 A.D.2d 931, 171 N.Y.S.2d 909(25) (Third Dep't.1958); King v. Kelly, 9 A.D.2d ... (People v. Wagonseller, ... 25 Misc.2d 217, 205 N.Y.S.2d 933 (1960)). The record is clear that it was after the defendant's refusal, that the arresting officer charged ... ...
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People v. Bronzino
...Ashby, 31 Misc.2d 707, 708, 220 N.Y.S.2d 607, 609; People v. Pfendler, 29 Misc.2d 339, 341, 212 N.Y.S.2d 927, 929; People v. Wagonseller, 25 Misc.2d 217, 205 N.Y.S.2d 217, 205 N.Y.S.2d The trial court also instructed the jury that the unsafe condition of the tires on the automobile driven b......
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