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Court denies dismissal of DWI Charges - Not in the Interests of Justice

John Acevedo attempted to dismiss his DWI charges in the interests of justice. He stated that he had a clean criminal record and that he was a first time offender. He stated that his conviction would tend to diminish the public's faith in the criminal justice system.

He did this by moving pursuant to Criminal Procedure Law ("CPL") §170.40 and People v. Clayton, 41 AD2d 204 [1973], for dismissal of the charges: Operating a Motor Vehicle While Intoxicated, per se, Operating a Motor Vehicle While Intoxicated; and Operating a Motor Vehicle While Impaired.

Law: CPL §170.40(1) requires that the Court, when considering a dismissal motion, must "individually and collectively" consider ten factors:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of a dismissal on the safety or welfare of the community;

(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

In order for an interest of justice dismissal to succeed there must be a "compelling factor" clearly demonstrating that prosecution of the defendant on the charges would constitute or result in injustice. See People v. Keith R., 95 AD3d 65 [1st Dept 2012].

Analysis: "The defendant is charged with Driving While Intoxicated VTL §§1192(2), 1192(3) and Driving While Impaired VTL §1192(1). These are serious crimes which lead to injuries and deaths every day. The defendant is alleged to have passed through a stop sign, not wearing a seat belt while driving in an intoxicated condition with a blood alcohol content of .11 percent which is .03 percent over the legal limit. The defendant's actions presented a danger to the safety of himself and of anyone sharing the road with him at the time when his conduct is alleged to have occurred. The seriousness and circumstances of the offense, pursuant to CPL §170.40(1)(g) and the evidence of guilt as indicated by the chemical test analysis, pursuant to CPL §170.40(1)(c) do not support a dismissal in the interest of justice."

In 2015, the charges of driving under the influence have become very serious. "The defendant maintains his innocence in this matter. However, the evidence against the defendant includes Police Officer's Mencarelli's observations that the defendant had been driving, he disobeyed a stop sign, was not wearing a seatbelt, had watery and bloodshot eyes, had the odor of an alcoholic beverage of his breath, was unsteady on his feet, and had a flushed face. Additionally, a chemical test of the defendant's breath indicated that his blood alcohol content was .11 percent." The Court noted that the Defenadnt is a first time offender and that his wife is suffering from a serious medical condition which will likely necessitate Mr. Acevedo to drive an automobile to transport her to medical facilities. Nonetheless, driving offenses have become very serious. The allegations here, Driving Under the Influence of Alcohol, will not allow the court to weigh these factors in favor of the defendant.

Conclusion: "the Court finds that the defendant has not met his burden to show the existence of some compelling factor clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice."

The case is The People v. Acevedo, 2014NY032982, NYLJ 1202715222147, at 1 (Crim., NY, Decided December 31, 2014).

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