New York Criminal Lawyer Blog
The plaintiff of this case is the People of the State of New York. Patricia Rose is the defendant. This case is being heard in the District Court of Nassau County, First District. Judge Kenneth L. Gartner is overhearing the case.
The defendant has made a motion for the criminal charge of driving while impaired by drugs dismissed. A New York Drug Crime Lawyer said this motion requires the court to review an area of the law that has caused conflict in recent trial court opinions from the First, Second, and Third Judicial Departments as well as the trial court and appellate court opinions.
Case Background
The defendant has been charged with driving while her ability was impaired by drugs. A police officer offered a deposition that stated that he was called to an area outside of a place called “Iceland” on a Tuesday morning at around 4:30 a.m. for a reported fight. When he arrived at the site there was not a fight, but the defendant was in her vehicle in the parking lot of the establishment with the engine running. A New York Drug Crime Lawyer said the officer spoke to the defendant and her passenger. The officer states that the defendant had watery eyes and had difficulty understanding even simple instructions. He tested her blood alcohol level and it was at 0.0%. The defendant refused to give a urine sample for testing. The officer arrested her for driving while impaired by a drug and a full DRE was given at CTS.
The defense argues that there is no statement provided that states the defendant was actually seen driving the vehicle. The defense argues that the statement that the other person in the car was the passenger merely implies that the defendant was behind the wheel.
The other argument made by the defense is that there is no information to support the specific drug that the defendant was impaired by.
It is felt that the implication that the defendant was driving the vehicle is enough evidence in regard to the first argument made by the defendant.
A Nassau County Drug Possession Lawyer said while there is no mention of the specific drug that the defendant was using, it is stated that a full DRE was given. It is assumed that the result of this test is the reason for the defendants arrest at the time.
Court Opinion
In a driving while impaired by drugs case there has to be proof that the impairment of the individual was caused by one of the drugs that is on the Public Health Law list. First Department Courts have held that prosecution for this type of case must be based on an admission from the defendant that they have used a specified drug or by a chemical analysis of the defendant’s urine or blood that shows the drug is present. A Queens Drug Possession Lawyer said this particular requirement allows a person, such as the defendant in this case, who does not admit to using the drug and has not consented to a chemical test, the ability to escape prosecution in the matter.
Courts in the Second and Third Department have stated that opinion testimony given by drug recognition experts who have been police trained to identify the drug that has caused the impairment can be used.
In this particular case, the Court agrees with the Second and Third Department rulings. It is felt that evidence supplied from a qualified police officer is admissible in court. The motion for the charges against the defendant to be dismissed is denied.
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