Webster judge dismisses DWI case

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Webster Town Justice Thomas J. DiSalvo has dismissed drunk driving charges because of insufficient evidence.

Defendant Gregory W. Chandler was charged with common law driving while intoxicated (Vehicle and Traffic Law Section 1192 (3)), and driving while intoxicated, per se (VTL 1192 (2)).

The accusatory instruments consisted of two simplified traffic informations — a fill-in-the-blank supporting deposition, and a breath test supporting deposition.

Chandler was arraigned on Dec. 3. His attorney, Frank G. Maggio, filed motions which were argued on Jan. 21.

Maggio moved to dismiss the accusatory instruments, which he argued were insufficient on their face. He also requested that the prosecution be precluded from using statements made by the Chandler to the police because the 710.30 notice failed to give the defense proper notice of the statements they planned to use at trial.

Maggio also requested that evidence obtained by the police be suppressed because the police did not have probable cause to stop or arrest Chandler.

According to a supporting deposition/bill of particulars filed by the arresting officer, the reason Chandler was stopped was a “crash” and “property damage.”

The arresting officer claimed he established that Chandler was operating the vehicle by “direct observation,” according to that document.

Probable cause to charge Chandler was based on the “odor of alcoholic beverage,” “glassy eyes,” “impaired speech,” and “impaired motor coordination,” according to the officer.

In the section designated “Probable Cause for Arrest,” the officer indicated that Chandler performed field tests and also indicated that a note card was attached.

“However, no such note card was made a part of the deposition,” DiSalvo wrote in the decision released earlier this month.

The officer’s deposition indicated that “oral admissions” were made, but he did not specify what Chandler allegedly said.

The document directs the reader to “See Section 11,” which is in the 710.30 Notice.

No preliminary breath test was performed, but there was no refusal to submit to a breath test by Chandler.

Other than a breath test subsequently performed by another officer, no other information relative to Chandler’s condition was provided by the deposition.

A second police officer executed the breath test, which determined a breath chemical analysis of 0.16%.

According to the deposition of the arresting officer, Chandler had “poor coordination, bloodshot watery eyes, alcohol beverage odor.”

An accusatory instrument charging a defendant with common law driving while intoxicated must provide reasonable cause to believe three specific elements: The defendant operated a motor vehicle; that the defendant was intoxicated and that the operation and intoxication were simultaneous.

“In this case there is no allegation that the defendant was sitting behind the steering wheel of his vehicle or that the motor was running. In fact, the officer did not check the boxes indicating that the defendant was at the wheel; that keys were in the ignition; that the engine was running or that the engine was warm. Instead he checked the box that stated ‘the defendant was near the vehicle,’ ” DiSalvo wrote.

“Such a recitation of the facts observed by the officer does not establish the first element of common law driving while intoxicated, namely that of operation,” DiSalvo wrote.

“The term “operation” has a very specific meaning under the Vehicle and Traffic Law,” DiSalvo noted.

“A person operates a motor vehicle … when, in the vehicle, 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,” he wrote.

“This Court finds that the allegation that the motor vehicle was operating is conclusory and therefore is not a fact of an evidentiary character … which supports an element of the offense charged, namely vehicular operation,” he found.

The alleged admissions made by Chandler are not included with the supporting deposition of the arresting officer, DiSalvo pointed out.

“The deposition merely states ‘See Section 11,’ which is in the 710.30 notice. That document is not a local criminal court accusatory instrument. Thus, the admissions set forth therein cannot be considered by the court in determining the sufficiency of the misdemeanor information,” DiSalvo ruled.

“The statement that operation was established by the ‘Officer’s Direct Observation’ cannot be sustained when the defendant was merely seen ‘near the vehicle,’ ” DiSalvo ruled.

DiSalvo found that the fact that Chandler was near the vehicle, without any other information, does not establish the reasonable cause requirement that the allegations in the factual part of the information, along with supporting depositions, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information.

In addition, CPL Section 100.40 (1) (c) requires that non-hearsay allegations in the factual part of the information, and supporting depositions establish every element of the offense charged.

“That is not the case herein … there are no factual allegations regarding the position or location of the car or other surrounding circumstances that would allow the Court to reasonably infer the defendant operated his car while he was intoxicated,” DiSalvo found.

“The accusatory instruments fail to provide prime facie proof of said operation relative to the per se charge of driving while intoxicated,” DiSalvo ruled.

“The defendant’s motions to dismiss the accusatory instruments … are hereby granted,” he wrote.

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