Webster judge dismisses DWI charges

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A Webster town justice has reiterated a previous decision to dismiss drunk driving charges because of insufficient accusatory instruments.

In the case of defendant Gregory W. Chandler, Justice Thomas J. DiSalvo issued a written decision on Feb. 6 granting a motion to dismiss the charges of common law and per se driving while intoxicated, after no response was filed by the prosecutor.

Subsequently, the prosecutor filed a notice of cross motion and a responding affirmation on Feb. 12 and DiSalvo issued a superseding decision on Feb. 26.

Chandler was charged with offenses that allegedly happened on Nov. 9. His attorney, Frank G. Maggio, filed motions requesting that the accusatory instruments be dismissed for being insufficient on their face.

Maggio also moved to preclude the prosecutor from using statements made to police by Chandler because the 710.30 notice did not provide a proper notice of the statements they intended to use at trial.

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

The prosecutor’s response papers filed on Feb. 12 did not address the motion to prevent the use of the 710.30 notice.

According to documents prepared by police officers, the reason for stopping Chandler was a “crash” and “property damage.”

Officers claimed they established that Chandler was operating the vehicle by “direct observation.” But in the accusatory documents submitted, police stated: “Defendant was near the vehicle.”

Probable cause for Chandler’s arrest was based on the odor of alcoholic beverage, glassy eyes, impaired speech, and impaired motor coordination, according to accusatory documents prepared by police.

Police stated in the documents that Chandler performed field tests and referred to an attached note card, but no note card was actually attached.

An officer’s supporting deposition stated that Chandler made oral admissions, but did not specify what was allegedly said by Chandler.

The police filing stated no preliminary breath test was performed, but that there was no refusal to submit to a breath test by Chandler, but a breath test was subsequently performed and indicated a breath chemical analysis of 0.16%.

Police filings described Chandler as having “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, DiSalvo wrote.

The accusatory instruments must allege that the defendant operated a motor vehicle; that the defendant was intoxicated, and that the operation and intoxication were simultaneous.

“However, 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,” DiSalvo wrote.

The arresting officer did not check the boxes on the accusatory document indicating that the defendant was at the wheel, that keys were in the ignition, and 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.

“This Court finds that the allegation that the motor vehicle was operating is conclusory,” he wrote.

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

The fact that the defendant was near the vehicle, without any other information, does not provide the reasonable cause requirement, DiSalvo ruled.

“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,” he wrote.

“The accusatory instrument and the supporting deposition fail to provide prime facie proof of said operation relative to the charge of per se driving while intoxicated,” DiSalvo wrote.

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