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BAC admissible at trial


Claimant, as limited administratrix of her late husband’s estate, seeks damages for his wrongful death which allegedly occurred when, as he drove his automobile along a New York State highway, he left the lane of travel colliding with a guide rail, causing his automobile to flip over and land on its roof, resulting in claimant’s decedent’s instant death. The claim alleges negligence on behalf of the State of New York in the construction and/or maintenance of the guide rail system situated alongside of a state owned roadway. Defendant argues the accident occurred due to driver-alcohol impairment. Furthermore, defendant contends that the subject guide rail was not designed to withstand the force of the collision involved in this accident, and that any maintenance failure did not contribute to the cause of this accident.

A New York Criminal attorney said that the subject accident occurred in December 1997 in the Town of Lloyd, Ulster County, New York. Shortly before that time, claimant’s decedent had driven to claimant’s residence. Upon arriving at the apartment complex’s parking lot, he remained in his vehicle. Soon after his arrival, claimant appeared on her stoop with two of their three children. Decedent remained momentarily then drove from the lot in his automobile. No conversation occurred between claimant and decedent and no explanation was offered regarding why he left so abruptly. Shortly after decedent drove away, claimant heard two loud successive “bangs.” She immediately called 911 reporting that there had been an accident in which she believed her husband was involved. She then left her apartment and ran to the scene of the accident which was a short distance.

A New York DWI lawyer said that claimant observed, much to her horror, that it indeed was her husband who had been involved in the accident as she saw his auto lying on its roof off the side of the road. As she remained roadside, a number of motorists stopped to look. One such person went to the decedent’s auto and opened the driver’s door, at which time, claimant saw her husband in the vehicle “bent over.” Immediately thereafter, claimant left the scene with one of her daughters who had become distraught at the sight. She later went to the Hospital in Poughkeepsie where her husband was taken by ambulance. There he was pronounced dead on arrival. No evidence was submitted to suggest he endured any pain and suffering.

The blood alcohol content (BAC) of decedent at that time proved to be.14%. This evidence was offered by the defendant to reflect the negligence of the decedent in the operation of his vehicle and thereby his contribution to the happening of the subject accident. At trial, claimant questioned the admissibility of the blood test results suggesting defendant’s failure to establish the required chain of custody regarding the blood sample taken. Furthermore, claimant objected to the introduction of this evidence based upon the failure of the police agency involved to comply with New York State Vehicle and Traffic Law § 1194 (2) (a) (1). The court reserved decision and invited counsel to brief the issues upon submission of their post trial memoranda.

In view of the fungible nature of a blood sample, the proponent of the admission of the blood test results has the burden of establishing the chain of custody and the failure to do so may be excused only where the circumstances provide reasonable assurances of the identity and unchanged condition of the sample. Here, the emergency room technician who drew the blood from decedent gave it to Town of Lloyd Police Officer who had responded to the hospital with the department issued blood sample kit. Police Officer sealed and signed the sample and returned it to his department’s secure evidence room. Thereafter, the sample was submitted by the Town of Lloyd Police Department to the New York State Police headquarters and lab at Newburgh, New York. It remained there when it was transported by UPS to the Western Regional Crimes Laboratory located in Olean, New York. There the sample was tested by Forensic Scientist who was assigned to the toxicology section of the lab. He testified that he received the subject blood sample from the lab’s evidence clerk. He verified that the sample arrived in a department issued blood sample kit. It was sealed per standard operating procedure and he saw no evidence of tampering. Once he performed a visual check to determine the sample had not spoiled, he conducted a blood alcohol analysis by utilizing the method of head space gas chromatography. This analysis revealed the blood sample to have a level of .14% ethyl alcohol. Claimant, having offered no contrary direct testimony, nor elicited any responses upon cross-examination significantly contrary, the court finds the defendant has established the chain of custody for the subject blood sample and that the test results were accurate.

Vehicle and Traffic Law § 1194 (2) and the New York State Department of Health Regulations mandate that blood and breath tests shall be administered within two hours of arrest. This two-hour rule was enacted in 1941 when the Legislature provided that the results of tests measuring a driver’s BAC be admissible at trial if the test was administered within two hours of arrest. “Because the human body rapidly metabolizes alcohol, the two-hour requirement was enacted to ensure that the results of the blood test constituted probative evidence of the defendant’s blood alcohol level at the time of operation of the vehicle.

Upon a review of the log photos, taken over a 16-year period, one can readily see that the subject guide rail has sustained physical damage. As explained, it is not unusual for the wing blade of a state owned snowplow to come into contact with the box beam rail or with one or more of the support posts. Furthermore, snow and salt plowed against the guide rail system contribute to corrosion of the metal guide rail system. The photo taken in August 1979 clearly depicts that a post and its angle bracket have separated from the box beam rail and are angled downward. The witness testified that very near this damaged post was the weld which he believed failed as a result of improper fabrication. In photos taken in May 1984, according to him, the height of the box beam rail has changed. From the weld towards the eastern terminus it appears to be lifted upward somewhat. Further, in these photos, the post that appeared to be angled downward in the 1979 photo is down on the ground, and the post immediately to the west of this downed post is separated from the box beam rail and is angled downward. He also noted that there appears to be rust on the face of the box beam near the weld. DWI was involved.

Credibility is a critical issue in any claim before the court. Weighing evidence and assessing veracity of conflicting testimony is a task for which there is no precise or flawless test. There are no juries in the Court of Claims and therefore the court’s responsibilities include deciding witness credibility and resolving factual disputes. This task is placed in sharper focus when the court is presented with expert testimony; testimony which is intended to aid the factfinder by helping to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror. The court, however, is not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. The court may reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion. Put another way, the court when faced with conflicting expert testimony is entitled to accept the theory that, in its view, best explains the point in issue and is supported by the evidence.

Considering all of the testimony, the photographic evidence as well as the demonstrative evidence offered by the experts, this court accepts that portion of the claimant’s expert’s opinion concerning the state’s construction of the subject guide rail contrary to the specific design specifications, as well as its failure to maintain the subject guide rail pursuant to the Department of Transportation’s own Highway Maintenance Guidelines. The court finds that the point of impact between the claimant decedent’s vehicle and the box beam guide rail was at the location of the much referred to weld, and that said weld was faultily applied thereby allowing invasive and corrosive rust to weaken the rail system. Furthermore, as is evidenced by the several photo log photographs, the subject box beam guide rail was left in disrepair for many years leading up to this accident as evidenced by the downed and disconnected support posts, missing support posts and the elevation of the box beam rail above its intended height. Although there was no evidence of any prior reported motor vehicle accident having occurred at the subject location, clearly there was some source of trauma to this guide rail system that went unreported.

It is well established that the state is under a nondelegatory duty to maintain its roadways in a reasonably safe condition for motorists who obey the rules of the road. The state is required to build a reasonably safe roadway consistent with the standards applicable at the time of design and construction. Yet, there is generally no obligation by the state to upgrade the structure which was originally built in compliance with applicable law solely because of changes in design specifications and standards. Where appropriate, it must erect and maintain guide rails. The state is not an insurer of the safety of motorists, and negligence cannot be inferred from the mere happening of an accident.

In claims based upon negligent design, the state is entitled to qualified immunity for claims arising out of its highway planning decisions, unless its study was plainly inadequate or lacked a reasonable basis. There are “[s]trong policy considerations” behind this doctrine, and it should therefore not be “lightly discounted”

To prevail, a claimant must prove that the injuries he or she sustained were proximately caused by the state’s negligence. Generally, liability will not attach unless the state had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition. The court finds that the defendant had both actual and constructive notice of the dangerous and defective condition that existed on State Route 44/55 where this accident occurred. The court further finds that defendant’s negligent construction and maintenance of the subject guide rail was a proximate cause of the claimant’s decedent’s accident.

Having found that both the defendant State of New York and the claimant’s decedent were negligent and that their negligence was a proximate cause of the happening of this accident, it is for the court further to decide what percentage of the whole each party was responsible. While this court recognizes that operating a motor vehicle while in an intoxicated state is indisputably a serious violation of the law, this would preclude recovery by the claimant only if there were no other proximate cause to the happening of the accident. “The fact that decedent’s ability to drive was impaired does not exonerate the State from liability on the ground that its negligence was not one of the proximate causes of the accident”. As in a case, the claimant’s decedent’s criminal act of driving while intoxicated was not the only cause of his accident. Undoubtedly, his reflexes were slowed, his judgment impaired, which combined with the state’s negligent construction and maintenance of its guide rail system, caused his death.

Accordingly, the court apportions liability 20% attributable to defendant and 80% attributable to claimant and will set the matter down for a trial on the issue of damages as soon as practicable.

Not every victim’s claims should be given to them wholly. Sometimes, they contribute to the damage sustained by them. Here in Stephen Bilkis and Associates, our New York DWI Defense attorneys determines the contributory negligence of the victims which may reduce the liability of the defendant. If you happen to be a victim of a vehicular accident and the assailant was found to be drunk, contact our New York Aggravated DWI lawyers now and we will advise you on what steps to take for your claims.

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