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Driving While Intoxicated: Two Distinct Standards Regarding Expert Testimony-One Is For Chemical Tests (1192.2) And The Other Is For Common Law (1192.3)


Criminal Appeal DWI Conviction

People v Fratangelo

2014 NY Slip Op 04041

New York Court Of Appeals

Decided on: June 5, 2014

No Chemical Test Is Necessary To A Finding Of Guilt Under The Common Law Under Section 1192.3 (DUI)

See Also:Grand Jury Proceedings: Court May Order A Witness To Give Testimony A Second Time Where Previous Testimony Was Unsworn

Summary: Defendant was arrested for speeding. Police administered a Breathalyzer test to Defendant and she was found to have a BAC of .09%. She was arrested and prosecuted for driving while intoxicated (DWI) under both section 1192.2 and 1192.3 of Vehicle and Traffic law. At trial, Defendant called an expert pharmacologist as a witness. The expert testified that, based on Defendant’s testimony as to when she last consumed alcohol and at the rate at which alcohol is absorbed into the bloodstream, Defendant’s BAC at the time she was stopped was between .03% and .04%. Defendant asked the court to charge jury in an instruction used in common law DWI cases; the court refused that motion.

The jury acquitted Defendant of ‘per se’ DWI, under sections 1192.2 but convicted her of the common law crime under Vehicle and Traffic law section 1192.3. The Court Of Appeals affirmed the order of the trial court.

Issue: Whether an expert’s testimony of a Defendant’s BAC that was below .05% was prima facie evidence that Defendant was not intoxicated under Vehicle and Traffic Law 1192.3 under that section’s definition of intoxication.

Holding: No. Defendant’s expert’s Testimony was not prima facie evidence under Vehicle and Traffic law §1192 (3) under that sections definition of intoxication. Vehicle and Traffic law §1192 (3) defines intoxication as when ‘Defendant is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.’ At trial, the People presented evidence of testimony of the arresting officer that when she was stopped Defendant smelled of alcohol, had glassy eyes, and failed four sobriety tests. This was sufficient to find her guilty under sections 1192.3. No chemical test is necessary to a finding of guilt under the common law under section 1192.3 (DUI)

Facts: Defendant was arrested for speeding. Upon arrest, Police stated that Defendant smelled of alcohol and had glassy eyes. Police administered a Breathalyzer test to Defendant and found a BAC of .09%. She was arrested and prosecuted for driving while intoxicated (DWI) under Vehicle and Traffic law sections 1192.2 AND 1192.3 At trial, the Defendant called an expert pharmacologist as a witness. The expert testified that, based on Defendant’s testimony as to when she last consumed alcohol and at the rate at which alcohol is absorbed into the bloodstream, Defendant’s BAC at the time she was stopped was between .03% and .04%. Defendant asked the court to charge jury in an instruction used in common law DWI cases; the court refused that motion.

The jury acquitted Defendant of ‘per se’ DWI, but convicted her of the common law crime under Vehicle and Traffic law section 1192.3 concluding that, any instructions regarding ‘prima facie’ evidence that can be presented, must be based upon chemical analysis and not the opinion testimony of a defense expert. The court granted leave to appeal. The Court Of Appeals held that if the People find that there was less than .08% of alcohol in Defendant’s blood while she was operating the motor vehicle, they may, but are not required to, find that she was not in an intoxicated condition. The Judge instructs the jury on the weight to be given certain evidence; an instruction that is appropriate only when the evidence consists of chemical tests. It allows the jury to evaluate the evidence for itself and lets them chose to believe the expert or not but instructs them to make inferences after they have made that evaluation. The Court Of Appeals affirmed the order of the trial court.

Legal Analysis: The Court held that the expert’s testimony that Defendant had a BAC of .03% -0.4% was not prima facie evidence that Defendant was not intoxicating under Vehicle and Traffic Law under 1192.3. This is because the definition of intoxication under 1192.3 is different than under section 1192.2

Under Vehicle and Traffic law section 1192.2, evidence of intoxication is channeled through the filter that is 1195.2. With that statue the legislature has determined that prima facie evidence of intoxication under 1192.2 will be determined by the chemical test. However, under 1192.3, the definition of intoxication is when a ‘Defendant is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.’ IN this case, the police testified that Defendant had smelled of alcohol on her breath, glassy eyes, and failed four sobriety tests. The Court found that that this evidence was sufficient to find Defendant guilty and affirmed the finding of guilt. The Court specifically stated that the expert’s testimony that Defendant’s BAC was between .03%-.04% was not the prima facie evidence that Defendant was not intoxicated under section 1192.2.


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