DWI on a John Deer

People v Stickler, 2012 NY Slip Op 05348 (3d Dept. 2012)

Oh – you cannot make this up – good old Chemung County:

“Defendant was charged in an indictment with vehicular manslaughter in the second degree and driving while intoxicated (two counts) after operating a John Deere “Gator” utility vehicle on a public road while he was intoxicated and, in doing so, causing the death of Joshua Long, his passenger. Long was killed when he was ejected from the vehicle as defendant allegedly drove off the road onto gravel and dirt, and then corrected the deviation of the vehicle’s course.”

Refused to blow and kept his license

Matter of Matter of Fermin-Perea v Swarts, 2012 NY Slip Op 03514 (1st Dept. 2012)

If you ever had the opportunity to fight a refusal hearing at DMV, you probably know how difficult it is to prevail.  This case is just unbelievable, but having defended DWI cases, it is a great tool to have in your arsenal if you can somehow grab a fact pattern like this:

“The arresting officer’s refusal report, admitted in evidence at the hearing, indicates that upon stopping petitioner because he was speeding, following too closely, and changing lanes without signaling, the officer observed that petitioner was unsteady on his feet, had bloodshot eyes, slurred speech and “a strong odor of alcoholic beverage on [his] breath.” However, the field sobriety test, administered approximately 25 minutes later, a video of which was admitted in evidence at the hearing, establishes that petitioner was not impaired or intoxicated. Specifically, the video demonstrates that over the course of four minutes, petitioner was subjected to standardized field sobriety testing and at all times clearly communicated with the [*2]arresting officer, never slurred his speech, never demonstrated an inability to comprehend what he was being asked, and followed all of the officer’s commands. Petitioner successfully completed the three tests he was asked to perform; thus never exhibiting any signs of impairment or intoxication.

Certainly, the contents of the arresting officer’s refusal report, standing alone, establish reasonable grounds for the arrest under the Vehicle and Traffic Law (Matter of Nolan v Adduci, 166 AD2d 277, 278 [1990] [police officer’s testimony that operator of motor vehicle was exceeding the speed limit, driving erratically, and his breath smelled of alcohol constituted reasonable grounds to arrest him for driving under the influence of alcohol], appeal dismissed 77 NY2d 988 [1991]). However, where, as here, a field sobriety test conducted less than 30 minutes after the officer’s initial observations, convincingly establishes that petitioner was not impaired or intoxicated, respondent’s determination that there existed reasonable grounds to believe that petitioner was intoxicated has no rational basis and is not inferable from the record (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984] [“If the agency’s determination is not supported by substantial evidence or it constitutes a clearly erroneous interpretation of the law or the facts, it will be annulled”]). A field sobriety test is “accepted within the scientific community as a reliable indicator of intoxication” (People v Hammond, 35 AD3d 905, 907 [2006], lv denied 8 NY3d 946 [2007]). Here, the field sobriety test, conducted shortly after petitioner was operating his motor vehicle, which failed to establish that petitioner was intoxicated or otherwise impaired, leads us to conclude that respondent’s determination is not supported by substantial evidence.”

An admission is not enough…

People v. my client-

It is not every day a DWI criminal complaint gets dismissed based upon facial insufficiency grounds.  I pulled off what I thought was a long shot.  I am still trying to figure out how I did this.

Read here.

DWI defense non-upheld: mailing, denials and affidavits gone awry

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 01458 (2d Dept. 2011)

If it could have gone wrong, it did.

“In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff’s claim. The defendant’s denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375).”

DWI defense to no-fault benefits not substantiated in opposition to Hospital’s motion for summary judgment

Westchester Med. Ctr. v Government Employees Ins. Co., 2010 NY Slip Op 07331 (2d Dept. 2010)

Establishing a DWI defense to the payment of no-fault benefits is not an easy task.  The insurance carrier is often forced to jump through many hurdles just to raise an issue of fact.  It also used to be that demonstrating the fact that there was an accident and proof of intoxication was sufficient to warrant a trial on the underlying defense.  This does not appear to be the case now.

“Since the defendant failed to submit any evidence whatsoever from which the circumstances of the accident could be ascertained, the nature of the accident is unknown, and, thus, the defendant’s evidence, while presenting a factual question as to whether the plaintiff’s assignor was operating a vehicle in an intoxicated condition, was insufficient by itself to raise a triable issue of fact as to whether the plaintiff’s assignor was injured as a result of operating a motor vehicle while in an intoxicated condition”

In Westchester Medical Center v. State Farm Mut. Auto. Ins. Co. 44 A.D.3d 750 (2d Dept. 2007), the Appellate Division held the following: “the defendant raised a triable issue of fact through its submission of the police accident report (hereinafter the PAR) that Gjelaj was intoxicated at the time of the accident and that such intoxication caused the accident. The PAR was properly considered by the Supreme Court under the business record exception to the hearsay rule to the extent that it was based upon the **3 personal observations of the police officer present at the scene and under a business duty to make it (see CPLR 4518 [a]; Yeargans v Yeargans, 24 AD2d 280, 282 [1965]). Based upon the police officer’s personal observations and knowledge, Gjelaj’s vehicle left the roadway and struck a tree, and Gjelaj was arrested for driving while intoxicated. Thus, the Supreme Court properly denied the plaintiff’s motion for summary judgment.”

How do you reconcile these two cases?

DWI defense to no-fault benefits not substantiated in opposition to Hospital's motion for summary judgment

Westchester Med. Ctr. v Government Employees Ins. Co., 2010 NY Slip Op 07331 (2d Dept. 2010)

Establishing a DWI defense to the payment of no-fault benefits is not an easy task.  The insurance carrier is often forced to jump through many hurdles just to raise an issue of fact.  It also used to be that demonstrating the fact that there was an accident and proof of intoxication was sufficient to warrant a trial on the underlying defense.  This does not appear to be the case now.

“Since the defendant failed to submit any evidence whatsoever from which the circumstances of the accident could be ascertained, the nature of the accident is unknown, and, thus, the defendant’s evidence, while presenting a factual question as to whether the plaintiff’s assignor was operating a vehicle in an intoxicated condition, was insufficient by itself to raise a triable issue of fact as to whether the plaintiff’s assignor was injured as a result of operating a motor vehicle while in an intoxicated condition”

In Westchester Medical Center v. State Farm Mut. Auto. Ins. Co. 44 A.D.3d 750 (2d Dept. 2007), the Appellate Division held the following: “the defendant raised a triable issue of fact through its submission of the police accident report (hereinafter the PAR) that Gjelaj was intoxicated at the time of the accident and that such intoxication caused the accident. The PAR was properly considered by the Supreme Court under the business record exception to the hearsay rule to the extent that it was based upon the **3 personal observations of the police officer present at the scene and under a business duty to make it (see CPLR 4518 [a]; Yeargans v Yeargans, 24 AD2d 280, 282 [1965]). Based upon the police officer’s personal observations and knowledge, Gjelaj’s vehicle left the roadway and struck a tree, and Gjelaj was arrested for driving while intoxicated. Thus, the Supreme Court properly denied the plaintiff’s motion for summary judgment.”

How do you reconcile these two cases?

One too many DWIs may cost you more than your no-fault benefits or a short stint in prison

Should you violate any portion of the DWI statute (except VTL Section 1192.1) and get into an accident where there is evidence that the alcohol impariment was a proximate cause of the accident, then you may lose your no-fault benefits, provided the bills are timely denied.  11 NYCRR 65-1.1; 11 NYCRR 65-3.8.

Get caught 8 times while driving drunk, six of them being felonies under New York’s DWI recidivist statute (VTL Section 1193), and you have a lot more to worry about then losing your no-fault benefits or even doing a small jail or prison stint.

While People v Travis 2009 NY Slip Op 08851 (2d Dept. 2009)  is also a business record case, the following is what caused me to post this decision.

“We also reject the defendant’s contentions that he was denied equal protection regarding his sentence, and that the sentence was an abuse of discretion and constituted cruel and unusual punishment. A sentence imposed within the statutory limits ordinarily is not cruel and unusual punishment in the constitutional sense (see People v Jones, 39 NY2d 694, 697). In our view, the imposition of the enhanced sentence in the instant case corresponds to defendant’s long and unwavering criminal history. A sentence of 15 years to life for a persistent felony offender convicted of operating a motor vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192(3) [driving while intoxicated] and aggravated unlicensed operation of a vehicle in the first degree has previously been upheld (see People v Turner, 234 AD2d 704; People v Bowers, 201 AD2d 830). Here, the County Court noted the defendant’s extensive criminal background. In the 23 years prior to sentencing, the defendant had been arrested and convicted of eight previous charges of operating a motor vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192(3) [driving while intoxicated], six of which were felonies. Based upon the defendant’s continued drinking and his continued failure to refrain from mixing alcohol and the privilege of driving an automobile, we find no reason to disturb the County Court’s treatment of the defendant as a persistent felony offender. The sentence imposed was not excessive (see People v Adams, 55 AD3d 616; People v Suitte, 90 AD2d 80).”

There was a dissent as to the sentence:

“I highlight the facts that struck me as particularly significant and that distinguish this case from People v Bowers (201 AD2d 830) and People v Turner (234 AD2d 704), the Appellate Division, Third Department, cases on which my colleagues rely.

Unlike in Bowers, the defendant here, who has a record of alcohol-related offenses, has no history of violence and has never caused physical injury or property damage through these accidents. [*3]His most recent felony conviction for driving while intoxicated was 10 years ago, in 1999, for which he received an indeterminate sentence of 1½ to 4½ years of imprisonment. In Bowers, the Court affirmed the defendant’s sentence of 15 years to life based on the defendant’s 50-year criminal history, 13 previous alcohol-related driving offenses, at least one of which occurred after his arrest on the current charge, and the fact that the defendant was involved in an accident.

This case also may be distinguished from Turner, in which the defendant was observed driving erratically and repeatedly crossing the yellow lines on the roadway.

With respect to the underlying incident, the defendant was not observed driving recklessly, erratically, or otherwise. The defendant was observed while parking his vehicle, which he drove less than 100 feet. He was traveling at the posted speed limit of 30 miles per hour, and the arresting officer did not observe a moving violation. The defendant was approached by police officers on the basis that one of the headlights of his truck was not working. The arresting officer testified that the vehicle came to a stop in a normal fashion.

In my estimation, the facts of this case demonstrate that, while the defendant is certainly suffering from long-term alcoholism, he did not possess the requisite culpability to warrant a sentence of incarceration of 15 years to life. This Court should exercise its discretion by reducing the defendant’s sentence and imposing the maximum sentence for a class E felony (see Vehicle and Traffic Law § 1193[1][c]), an indeterminate sentence of 1 to 4 years of imprisonment (see Penal Law § 70.00[2][e]). On the basis of the sentence alone, I respectfully dissent in part.”