Opinion 02-54

June 7, 2002

Digest:         A judge who had been charged with speeding and driving while intoxicated and was acquitted after trial is not precluded from presiding over cases involving individuals charged with violating the same statutes.

Rule:            22 NYCRR 100.3(E); People v. Moreno, 70 N.Y.2d 402 (1987); Opinions 00-119; 99-81.

Opinion:

         A town justice had been stopped in an adjoining jurisdiction and charged with speeding and driving while intoxicated. Following a three day trial the judge was acquitted on all charges. During the course of the trial it was claimed by a police officer that at the scene the judge stated that a breathalyzer test was unreliable. Testifying in his own behalf, the judge denied making such a statement. In acquitting the inquirer, the trial judge stated, as reported by the inquirer, that he could not “find that the defendant would outright say that breathalyzers are not accurate.” There is no indication that the trial court’s decision was based on its rejection of the testimony that the judge had made such a statement concerning breathalyzers.

An opinion is now sought by the town judge as to whether he/she can preside in cases involving individuals who have been charged with speeding and driving while intoxicated. The justice indicates that he/she can be fair and impartial in adjudicating all such matters that might come before the court.

         We note that there is no per se prohibition barring a judge from presiding over cases involving persons charged with the same statutory offenses previously faced by the judge. That fact alone does not constitute a situation “in which the judge’s impartiality might reasonably be questioned . . . “ 22 NYCRR 100.3(E). Here, the judge had presumably exercised his conscience as required under People v. Moreno, 70 N.Y.2d 402 (1987), and concluded that he/she can be fair and impartial. Nothing set forth in the inquiry leads the Committee to suggest that the judge reconsider that conclusion. See, e.g. Opinions 00-119, 99-81. Thus, based on the facts presented, the judge is not ethically required to exercise recusal in cases involving allegations of speeding and driving while intoxicated.