NY appeals court reinstates drunk driving charge

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A state appeals court has reinstated a drunk driving charge because the trial judge ruled incorrectly that the prosecutor improperly instructed the grand jury.

Defendant Phillip Dondorfer was indicted on charges of driving while ability impaired by the combination of drugs, or alcohol and drugs, with a child present, in addition to driving an uninspected vehicle.

In June 2023, Wyoming County Court Judge Michael M. Mohun granted a defense motion to dismiss the drunk driving charge.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, unanimously reversed Mohun’s decision, reinstated the charge, and sent the case back to Wyoming County Court.

The fundamental question in the appeal was whether Mohun erred in granting the defense motion to dismiss the drunk driving charge on the ground that the prosecutor failed to properly instruct the grand jury on the definition of the term “impaired.”

“We answer that question in the affirmative and conclude that the court erred in granting the renewed motion,” Justice John M. Curran wrote in the decision.

“Ultimately, we conclude that the term ‘impaired’ should be defined consistently across the Vehicle and Traffic Law — whether in the context of impairment by alcohol or in the context of impairment by drugs or a combination of drugs and alcohol,” Curran wrote.

According to the decision, police stopped Dondorfer’s car late at night because the inspection was expired. Dondorfer’s 15-year-old daughter was in the car.

During the stop, police determined that Dondorfer was impaired by drugs and alcohol based on his demeanor, his admission to recently using drugs, and his failure to successfully perform several field sobriety tests, according to the decision.

That determination also was corroborated by a certified drug recognition officer called to the scene to perform a field evaluation.

The prosecutor presented two charges to the grand jury to consider: aggravated DWI, predicated on Dondorfer driving while ability impaired by the combination of drugs or alcohol and drugs with a child present, and uninspected vehicle.

The prosecutor instructed the grand jury on the definition of the term “impaired” as follows: “A person’s ability to operate a motor vehicle is impaired by the combined use of alcohol and drugs when that combination of alcohol and drugs has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver.”

After hearing witness testimony related to the vehicle stop and defendant’s arrest, the grand jury indicted Dondorfer on both charges.

Dondorfer’s attorney filed a motion requesting that Mohun dismiss the indictment because the grand jury was not properly instructed. That motion was denied.

Just before a bench trial was about to start, Dondorfer’s lawyer asked Mohun to use the definition of impairment by a combination of drugs and alcohol found in Vehicle and Traffic Law Section 1192 (4-a): “Whether his consumption of a combination of drugs and alcohol rendered him ‘incapable of employing the physical and mental abilities which he … is expected to possess in order to operate a vehicle as a reasonable and prudent driver.’”

“Effectively, defendant wanted the court to define ‘impaired’ in this case according to the standard typically used to show ‘intoxication’ by alcohol,” Curran wrote.

The prosecutor objected, arguing that the standard requested by Dondorfer’s lawyer applied only to intoxication by alcohol.

The prosecutor argued that the correct definition to use in Dondorfer’s case was whether his consumption of a combination of drugs and alcohol “has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.”

Mohun agreed with Dondorfer’s lawyer that the intoxication standard should be used.

Subsequently, Dondorfer’s attorney renewed his motion to dismiss the drunk driving charge on the grounds that there was insufficient evidence to support that count on the element of impairment and that the instructions to the grand jury on that count used the incorrect definition of the term “impaired.”

Mohun granted the motion, referencing the prior ruling that he would follow the intoxication standard, and concluding that “the use of the lower, ‘to any extent’ standard (by the prosecutor) prevented the grand jury from properly assessing whether legally sufficient evidence existed to establish all of the material elements,” Curran wrote.

The prosecutor appealed that decision, and the Fourth Department reversed.

“We conclude that accepting the definition of the term ‘impaired’ advocated by defendant and adopted by the court would run afoul of those general principles and effectively — and impermissibly — rewrite the statute without any legislative involvement,” Curran wrote.

“We conclude that the longstanding judicial interpretation of the word ‘impaired’ as used in the Vehicle and Traffic Law supports the People’s proffered definition of that term in the context of Section 1192 (4-a), rather than the one used by the court,” he wrote.

“The term ‘impaired’ has been defined by the ‘to any extent’ standard for almost 50 years and has clearly and consistently been distinguished from the term ‘intoxication’ for all of that time,” Curran wrote.

“Ultimately … the Court of Appeals has continually drawn a sharp distinction between the terms intoxication and impairment, concluding that the former term only applies to alcohol inebriation,” he wrote.

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