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Court Discusses Use of Opinion Testimony

The Facts of the Case:

On a Tuesday morning, at 4:37 A.M, a police officer was called to the area outside an establishment by the report of a fight. Upon arriving, the officer saw no fight, but observed the defendant’s vehicle parked in the lot with the engine running and the lights on. The officer approached the vehicle and in speaking to the defendant and her passenger, he noted that the defendant was extremely unsteady on her feet, had watery eyes, and had an extremely hard time to understand even the simplest of instructions. Upon testing, the defendant’s blood alcohol level was .00%, showing the absence of alcohol. While defendant refused a request to have a urine sample given for testing, a full DRE was administered at CTS. Thereafter, defendant was arrested and charged with driving while impaired by a drug in violation of the Vehicle and Traffic Law.

The defendant then filed a motion to dismiss the misdemeanor criminal charge against her of driving while ability impaired by drugs and argues that the first insufficiency arises from the fact that there is no specific statement in either the simplified traffic information or the supporting deposition that the defendant was actually observed behind the steering wheel, in the driver’s seat, or even in the vehicle; that the statement that the other person present was her passenger merely infers that the defendant was the driver; that the second insufficiency arises from the fact that neither the simplified traffic information nor the supporting deposition specify the drug which allegedly impaired the defendant.

The Ruling of the Court:

A New York DWI Lawyer said the instant case requires the court to review an area in which there is a conflict between recent trial court opinions from the First Judicial Department, and trial court and appellate opinions from the Second and Third Judicial Departments. A driving while impaired by drugs prosecution requires that the individual’s impairment be shown to have been caused by a drug specifically listed in the Public Health Law. Recent First Department courts have held that any such prosecution must therefore be based on either an admission by the defendant that he or she has used the specified drug, or a chemical analysis of the defendant’s blood or urine showing the presence of the drug. This requirement concededly allows an individual such as the instant defendant, who neither admits drug use nor consents to a chemical test, to escape prosecution. Second and Third Department courts, however, have determined that opinion testimony from police trained as drug recognition experts as to the identity of the drug causing the impairment is admissible, thus allowing it to supply the required element. The herein court follows the Second and Third Departments’ precedent. Thus, the defendant’s motion must be denied.

On the first claimed insufficiency, regarding operation, the Court has held in various cases that the operation of a vehicle is established on proof that the defendant was merely behind the wheel with the engine running, without need for proof that the defendant was observed driving the car or operating it so as to put it in motion. Thus, the fact that the vehicle was never observed in motion does not render the instrument defective, since the vehicle was reported to have its engine running. As far as the alleged absence of support for the defendant’s having been behind the wheel is concerned, it is statutorily dictated that a simplified traffic information has a different, and lesser, requirements for facial sufficiency than a misdemeanor information. In fact, a simplified traffic information is not required to have factual allegations of an evidentiary nature, whether hearsay or non-hearsay, and if a supporting deposition is requested it can be based on hearsay or non-hearsay so long as it provides a reasonable cause to believe that defendant committed the charged offenses. The required provision of reasonable cause to believe that the defendant committed the charged offense may be supplied by facts which permit an inference that a required element, such as operation of a motor vehicle, was present, with no requirement of more direct proof. For this reason, the affidavit of the police officer stating that the other individual was the passenger of the defendant in the vehicle permits, as counsel acknowledges, an inference that the defendant was the driver of the vehicle. Indeed, even if the defendant were not to have been observed in the vehicle, but merely near it, the totality of the circumstances including proximity to the vehicle, the fact that the lights were on and the engine running, and the presence of a passenger could suffice. Moreover, what was annexed and affixed to the simplified traffic information was in fact a combined DUI/DWI Supporting Deposition and Bill of Particulars, subscribed to by the arresting officer. The bill of particulars portion of the document does in fact specifically record the arresting officer’s observation that the defendant was at wheel, in vehicle, with keys in ignition, and motor on. Under the rules, a bill of particulars is generally not a discovery device, but a written statement by the prosecutor which serves to clarify the pleading. A Nassau County DWI Lawyer said the defendant charged by way of a simplified traffic information is not entitled to a bill of particulars upon demand. When a bill of particulars is used in conjunction with an instrument such as a long form information, which must be supported by non-hearsay allegations, the prosecutor’s hearsay statements therefore cannot cure a deficiency.

Nonetheless, if voluntarily provided in conjunction with a simplified traffic information whose supporting deposition may be based upon information and belief, and if in fact subscribed to by the arresting officer as part and parcel of the supporting deposition, a bill of particulars must be considered in assessing the instrument’s sufficiency. Here, it renders the instrument sufficient in this regard.

On the second claimed insufficiency, regarding the drug impairment, not only is there no mention in either the simplified traffic information or the supporting deposition of the identity of any drug under which the defendant was purportedly under the influence, but both the supporting deposition and Criminal Procedure Law notice served upon the defendant record the defendant’s persistent denial of having been under any such influence. While the defendant has submitted what purports to be a clean toxicology screening allegedly performed within 48 hours of the incident by the defendant’s own laboratory, the supporting deposition does refer to a full DRE having been administered at CTS, the Nassau County police central testing station, prior to the arrest of the defendant. The inference drawn is that the arrest was based upon the results of that full DRE. In fact, the People served voluntary disclosure forms (VDFs) upon the defendant and included within those VDFs was a two page drug influence evaluation. Purportedly completed by a drug recognition expert (DRE), this evaluation, after detailing the investigation, examination, and testing to which the defendant was subjected, and upon which the drug recognition expert’s opinion is based, concludes that the subject is under the influence of PCP and Cannabis and her ability to operate a vehicle safely is impaired. The utility of this opinion remains a matter of some controversy, with some recent case law supporting the proposition that it has no legal value. Were this proposition accepted, dismissal would be appropriate. As held in the case of People v Grinberg, chemical analysis is necessary for a prosecution under Vehicle and Traffic Law for driving while ability is impaired by drugs. This is because one of the elements of this offense is that the drug or substance alleged to have caused the defendant’s impairment must be listed in section 3306 of the Public Health Law. Absent such chemical analysis, or perhaps defendant’s admission, the prosecution could not prove that the defendant was impaired by one of the listed drugs. The court is not unmindful of the People’s argument that there appears to be a gap in the legislative scheme, that is, one that allows drivers who appear to be under the influence of drugs and who refuse to take a blood or urine test to escape prosecution. However, this gap must be filled by legislative action and not by judicial fiat. In another case, the court rejected the argument that the officer’s observations, standing alone, were sufficient to provide reasonable cause to believe that the defendant was under the influence of a drug prohibited by Vehicle and Traffic Law. Concluding that unlike the symptoms of intoxication, which are universally recognizable, the effects of any particular drug or class of drugs listed in Public Health Law, are not necessarily uniform in the way they affect an individual’s appearance, and that, therefore, barring defendant’s admission, only a laboratory analysis can provide the threshold facts to show defendant ingested a drug. Any other interpretation would allow a non-expert to speculate as to which drug was ingested by defendant. However, in a similar case, it was observed that over the last several years, the Los Angeles Police Department has developed a series of clinical and psycho-physical examinations. These procedures are designed to enable trained police officers to determine whether a suspect is under the influence of drugs and, furthermore, what category of drugs he has been using. The Nassau County Police have been actively involved in the training of police officers in these procedures. The program and procedures are controversial in that their end product is the expression of an opinion by the drug recognition expert (DRE) as to the use by a defendant of a particular category of drugs.

While this case editorializes that the admissibility of an opinion by a drug recognition expert is questionable, it goes on to note that such opinions have been determined to be admissible in New York, at least in the Second and Third Judicial Departments. As a matter of fact, the court held in the case of People v Quinn that the DRE procedure was subjected to a hearing to determine its scientific validity pursuant to the standards set forth in Frye v United States, and People v Middleton, and was determined to be admissible. Moreover, in People v Villeneuve, the Appellate Division rejected a challenge to the admissibility of testimony of a police officer as a drug recognition expert. Under Villeneuve and Quinn, therefore, the conclusion of the prior two cases mentioned, that there is a strict admission or analysis requirement which forms the sole criteria for proceeding under Vehicle and Traffic Law, is incorrect. The written record of an opinion of a DRE can, and in the instant case does, provide reasonable cause for believing that the defendant committed the offense charged.

Thus, the issue now is whether the failure to have referred to, summarized, or annexed the drug influence evaluation to the supporting deposition renders the accusatory instrument dismissible. It would appear that it does. As stated by Practice Commentaries in what may be a rare case a timely filed deposition might not establish reasonable cause. Such failure renders the information insufficient on its face and dismissible. However, a counsel should be aware that filing an insufficient supporting deposition is not a jurisdictional defect. So, the insufficiency is waived by the failure of the defense to move for a dismissal. And as stated, a motion to dismiss for lack of a sufficient supporting deposition, like all other pre-trial motions, must be made in accordance with N.Y. Criminal Procedure Law which requires pretrial motions to be made within 45 days of arraignment unless the court fixes additional time. Like the herein case, the Appellate Term has held in the case of People v Key that a supporting deposition voluntarily provided to the defendant must meet the same statutory requirements as if it had been demanded; and that where it fails to set forth necessary facts, such as those from which operation could be inferred, it renders the instrument insufficient.

However, in affirming the Appellate Term’s reversal of the lower court’s dismissal of the instrument in Key, the Court of Appeals observed, that such a defect is waivable. Since a simplified traffic information can proceed to trial without any supporting deposition at all, and hence without any facts providing reasonable cause, it is unacceptable that absence of a factual allegation in the deposition is non-waivable. In the case of Key, since the motion was not timely made, the failure to adequately allege operation was waived. In People v Myrthil, the Appellate Term unanimously affirmed a judgment of conviction, holding that defendant failed to make a timely motion to dismiss the simplified information. Here, it must be noted that the case has been pending for almost two years, was on the trial calendar more than half a dozen times, and has been substantially delayed by the defendant herself having spent almost a full cumulative year in warrant status. The only defect which could support dismissal is the failure to summarize, include in, or annex to the supporting deposition itself a document which would supply the missing element. A New York Criminal Lawyer said this document has been in the defendant’s possession for almost two years, having been supplied 48 days after arraignment. If granted at this extremely late date, the defendant’s motion would do no more than force the case to be re-filed. In view of the foregoing, the court finds that the motion is untimely, and any alleged defect has been waived.

Accordingly, the motion is denied.

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