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  • Cory Morris

Driving While Intoxicated Conviction Dismissed as Legally Insufficient


The Defendant was charged with "Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of VTL §§ 1192(1), 1192(2) and 1192(3)." Although it may seem trivial, part of the criminal allegations against criminal defendant must include that the Defendant actually operated a vehicle. Yes, for one to be convicted of Driving Under the Influence, Operating a Motor Vehicle Under the Influence of Alcohol or Drugs, in New York, the People must alleged that the Defendant was the one who operated the vehicle in an intoxicated condition. Where, however, "there is no witness to the defendant's driving nor admission of the same by the defendant, the element of operation can be inferred through circumstantial evidence." Id. citing People v Salerno, 36 Misc 3d 151(A), *4 (App Term 2d Dept 2012).

"Defendant argues that the complaint is facially insufficient because there are no factual allegations that provide reasonable cause that the defendant operated a motor vehicle. VTL §§ 1192(1), (2), and (3) prohibit operation of a motor vehicle while either impaired or intoxicated by alcohol." The Court notes that "the sole allegations pertinent to the element of operation are that the defendant was seen sitting alone in the driver's seat of his car while intoxicated. There are no allegations that the engine was running, that the key was in the ignition, nor even that the defendant was in possession of the keys to his car." Id. The State of New York fails to allege that the Defendant actually drove the car - is this enough to have the case dismissed?

Legal Sufficiency

Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL § 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000];People v Kalin, 12 NY3d 225 [2009]). While this "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial" (People v Henderson, 92 NY2d 677, 680 [1999]), the failure to satisfy the requirements of CPL § 100.40 (1) (c) creates a jurisdictional defect to the criminal action (see People v Alejandro, 70 NY2d 133, 137 [1987]; Kalin, 12 NY3d at 229).

The definition of "operation" is broader than that of "driving" (see People v Prescott, 95 NY2d 655, 662 [2001]). A person operates a motor vehicle when "he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle" (id. quoting People v Alamo, 34 NY2d 453, 459 [1974]. See also People v Page, 266 AD2d 733, 775-76 [3d Dept 1999]; People v Dymond, 158 Misc 2d 677, 678 [County Ct Green County 1993] (definition of "operation" includes a mental state, namely, the intention to move a vehicle)). It appears that there is nothing tying the Defendant to operation or the intent to operate the motor vehicle.

Accordingly, the Court holds that "The factual allegations of the instant complaint fall far short of the circumstantial evidence other courts have relied upon to infer the element of operation where there was no witness to the defendant driving." "[T]he facts alleged are insufficient to find it reasonably likely that the defendant was operating his car at the time of the charged offenses (see People v Persaud, 49 Misc 3d 1206(A), *7 [Crim Ct Bronx County 2015] (mere allegation that defendant was seated behind the steering wheel insufficient to infer operation); People v Kaminiski, 143 Misc 2d 1089, 1093-94[Crim Ct New York County 1989] (observation that defendant was standing next to car while intoxicated insufficient to corroborate defendant's admission that he had been driving)). The charges of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of VTL §§ 1192(1), 1192(2) and 1192(3) are dismissed against the Defendant.

Should you, a friend or loved one find yourself facing criminal charges of Driving Under the Influence (DUI), Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, call the Law Offices of Cory H. Morris: 631-450-2515.

The Case is People v. Lawrence, 2017 NY Slip Op 50474 - NY: City Court, Criminal Court 2017.


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