Facts of the Case.

Thomas J. DiSalvo, J. On October 9, 2011 at approximately 6:26 P.M. a New York

State Trooper was dispatched to an accident scene on N.Y.S. Route 104 east of Five Mile Line

Road in the Town of Webster. The defendant was found trapped in her vehicle as a result of a

collision that occurred after she swerved off the right side of the road. She was then transported

by ambulance to Rochester General Hospital arriving there at 7:05 P.M. The defendant allegedly

exhibited various indicia of intoxication, which resulted in a blood draw by a nurse in the

emergency department. The defendant was arrested and was given three simplified traffic

informations charging her with Moved From Lane Unsafely, VTL 1128(a), Common Law

Driving While Intoxicated, VTL 1192(3) and Refusal to Take Breath Test, VTL 1194(1)(b). On

November 8, 2012 the defendant, accompanied by her attorney, appeared in Webster Justice

Court, where she was arraigned and released on her own recognizance. A toxicology report,

dated November 22, 2011, issued by the New York State Police Forensic Investigation Center

was provided to the court showing a blood test result of ethyl alcohol percent by weight of [*2]

"0.06". Defense counsel filed Omnibus Motions requesting, among other things, that the charge

of common law driving while intoxicated, VTL ll92(3) be dismissed as being defective, that is

insufficient on its face, based on the blood test reading of 0.06%.

Issue Presented.

Is a simplified information charging a defendant with common law driving while

intoxicated automatically insufficient on its face, if based on a supporting deposition and

toxicology report showing an ethyl alcohol blood count of 0.06% by weight?

Legal Analysis.

Defense counsel maintains that a blood count reading of 0.06 % by weight of alcohol is

proof that the defendant was not intoxicated, which would make the accusatory instrument

insufficient on it face. The defense relies on Vehicle and Traffic Law Section 1195(2)(b) which

states

"Evidence that there was more than .05 of one per centum but less than

.07 of one per centum by weight of alcohol in such person's blood shall

be prima facie evidence that such person was not in an intoxicated condition,

but such evidence shall be relevant evidence, but shall not be given prima

facie effect, in determining whether the ability of such person to operate

a motor vehicle was impaired by the consumption of alcohol."

The presumption provided by VTL 1195(2)(b) does not prohibit defendant with a BAC of

.06% from being charged with common law driving while intoxicated, VTL 1192(3).

Furthermore, a finding that an accusatory, charging common law driving while intoxicated,

pursuant to VTL 1193(3), is insufficient on it face, based solely on such a BAC of .06%, would

be unsupportable. VTL Section 1195 must be read in conjunction with VTL 1192(2), i.e.

"Driving While Intoxicated; Per Se" which prohibits the operation of a motor vehicle with a [*3]

BAC of .08 percent or more.

In this case the accusatory instruments are the aforementioned uniform traffic

informations and a standard check list format supporting deposition which is utilized by the New

York State Police, which incorporated the said toxicology report. In section six of that

supporting deposition entitled "Chemical Test Information" there is a box checked next to

language which states "Blood (Results to be delivered later)". As previously indicated the court

has been provided with an original "Toxicology Report", bearing the BAC of 0.06 per cent,

signed under penalty of perjury by a Jennifer F. Limoges, Supervisor of Forensic Services. It is

co-signed by Seth J. Tracy, Forensic Scientist III, Toxicology. Although both signatures appear

to be pre-printed form signatures the document contains a raised seal over the signature of Ms.

Limoges.

CPL 100.25(2) requires that the supporting deposition of the police officer be "... based

either upon personal knowledge or upon information and belief, providing reasonable cause to

believe that the defendant committed the offense or offenses charged." Reasonable cause is

defined as "... evidence or information which appears reliable discloses facts or circumstances

which are collectively of such weight and persuasiveness as to convince a person of ordinary

intelligence, judgement and experience that it is reasonably likely that such offense was

committed and that such person committed it. Except as otherwise provided in this chapter, such

apparently reliable evidence may include or consist of hearsay".^[FN1] "In fact, a simplified traffic

information is not required to have factual allegations of an evidentiary nature, whether hearsay

or nonhearsay (CPL 100.10[2][a]) and if a supporting deposition is requested it can be based on [*4]

hearsay or nonhearsay so long as it provides a reasonable cause to believe that the defendant

committed the charged offenses (CPL 100.25[2])". [People v. Rose, 8 Misc 3d 184,186, 794

N.Y.S.2d 630,632 (2005)]. In the instant case the supporting deposition, as it pertains to the BAC, is based on hearsay, namely the toxicology report issued by Forensic Investigation Center

of the New York State Police.

The different standard for sufficiency applied to simplified traffic infractions and

misdemeanor informations is addressed by People v. DeRojas 180 Misc 2d 690,691, 693

N.Y.S.2d 404,405 (App Term 2nd Dept. 1999), wherein the court stated

"... CPL 100.15 and 100.40(1) do not apply to simplified traffic

informations. It is statutorily dictated that a simplified traffic information

has different, and lesser, requirements for facial sufficiency than a

misdemeanor information. In fact, a simplified traffic information is

not required to have factual allegations of an evidentiary nature,

whether hearsay or nonhearsay so long as it provides a reasonable

cause to believe that [the] defendant committed the charged

offenses (CPL 100.25[2])."^[FN2]

The next question is whether the toxicology report taken together with the supporting

deposition establishes reasonable cause to believe that the defendant committed the offense of

common law driving while intoxicated. "Although the results of a chemical test would not be

admissible at trial unless the test was administered in accordance with the law ... the court must

consider this factual allegation in determining facial sufficiency just as the court is required to

consider the opinion of intoxication by the officer even though that opinion would not be

admissible at trial without proper foundation (People v. Smith, 163 Misc 2d 365)." [People

v.Gingello, 181 Misc 2d 163,165, 694 N.Y.S.2d 579,581 (1999)]. However, in determining

whether reasonable cause to believe that the defendant was driving while intoxicated has been [*5]

established by the supporting deposition, despite a BAC of less than the per se intoxication

standard, it must be kept in mind that VTL 1195(2) provides for rebuttable presumptions. (People

v. Blair 98 N.Y.2d722,723, 749 N.Y.S. 2d 809,810 [2002]). If the allegations set out in the

supporting deposition establish reasonable cause, then the People must be "... entitled to an

opportunity to rebut the section 1195 ... presumption at trial. [And] to the extent that People v.

Gingelo (181 Misc 2d 163, 694 N.Y.S.2d 579 [1999], ... holds to the contrary, it should not be

followed."^[FN3]

The law is clear that a reading of 0.06 per centum by weight is prima facie evidence that

the subject of the test is not intoxicated. " Prima facie is generally defined as evidence which is

sufficient to establish the facts unless rebuted' .... Put another way, it is such evidence as will

suffice until contradicted and overcome by other evidence'".^[FN4] Thus a BAC reading of .06 per

cent is not per se an unsustainable basis for a charge of common law driving while intoxicated.

However, "... an allegation of .06% BAC, without more, would negate the element of

intoxication and result in a facially insufficient accusatory instrument (see People v. Coutard,

115 Misc 2d 630, People v. Yost, Rochester City Ct, Apr. 21, 1998, Castro, J.)."^[FN5]

In this case there was a single car accident, wherein only the defendant was injured. In

the checklist supporting deposition, Trooper Loewke checked the boxes for "odor of alcoholic

beverages", "glassy eyes", "impaired speech" under the section entitled "Probable Cause for

Arrest". The supporting deposition further indicated that Trooper Loewke had a conversation [*6]

with the defendant at the arrest scene at 7:45 P.M., which appears to have been at Rochester

General Hospital. Furthermore, the supporting deposition alleges that the defendant stated she

had consumed two to three drinks of wine at a Rod and Gun Club. The defendant also indicated

that she was on her way home.

The "Conversation Narrative" section of the supporting deposition indicated that the

Trooper received a 911 report of a one car motor vehicle accident with a person trapped inside

the vehicle. The deposition indicated that the defendant was removed from her vehicle by fire

and ambulance personnel. The trooper stated that the defendant was transported to Rochester

General Hospital and arrived there at 7:05 P.M. The supporting deposition again indicates that

the Trooper had the aforementioned conversation with the defendant at 7:45 P.M. The

conversation reportedly went as follows as set out in the said supporting deposition:

"What happened? I think I was going into diabetic shock, I pulled over and ate

some crackers and then was going to continue to drive. Where are you going"

I was going home, but I dont [sic] know why I would be on [Route] 104.^[FN6] Where

were you coming from? Rod and Gun Club. Which one? I cant [sic] remember

the name right now sorry. Where [sic] you driving alone? Yes I was by myself.

How much have you been drinking? 2-3 Glass [sic] of wine. When was your

last drink? About 1hr ago. When did you start drinking? I dont [sic] know.

Where were you drinking? The Rod and Gun Club."

The supporting deposition noted that the defendant refused to take the pre-screen test, and again

set out that the trooper observed that the defendant exhibited a "strong odor of alcoholic

beverage, slurred speech, blood shot eyes, and impaired motor skills". Trooper Loewke then went

on to state that the defendant was arrested at 8:00 P.M.; that the Miranda Warnings were [*7]

provided at 8:02 P.M.; and that he gave the defendant DWI refusal warnings at 8:00 P.M.,

whereupon the defendant indicated she understood the warnings but refused to take the test, and

again was given the refusal warning at 8:25 P.M., whereupon the defendant indicated that she

both understood the warnings and agreed to take the test. Finally Trooper Loewke recorded that

he asked a nurse to draw blood from the defendant.

In People v. Coutard, 115 Misc 2d 630, 454 N.Y.S.2d 639 [1982] the trial court

dismissed the simplified traffic informations charging the defendants in three cases with common

law driving while intoxicated due to insufficient supporting depositions. In each of the cases in

question the supporting depositions accused the defendants of having a BAC of below the .10

percent, which was the BAC necessary to be charged with per se driving while intoxicated in

violation of VTL 1192(2) at that time. The court held that "In order to overcome the statutory

presumption accorded the operator of a motor vehicle by section 1195, the arresting trooper must

submit a deposition of substantially greater proportion, depth and detail than submitted in these

cases."^[FN7] The court went to hold that "It would appear to this court that before a proper charge for

the misdemeanor crime of driving while intoxicated can be sufficiently laid in face of a blood

alcohol content reading of less than .1% [the statutory standard for per se driving while

intoxicated at that time] a police officer must be able to provide something more that the usual

supporting deposition."^[FN8] Nevertheless, the court gave the People thirty days to charge the

defendants therein with "... the appropriate violation of the Vehicle and Traffic Law if they [*8]

deem[ed] same advisable."^[FN9]

Conclusion.

Dismissal of a simplified traffic information and a supporting deposition wherein the

the defendant is charged with common law driving while intoxicated, in violation of VTL

1193(3), with a BAC of .06% is not automatic. In the instant case the supporting deposition sets

out conflicting accusations. It sets out various indicia of intoxication such as "Strong Odor of

Alcoholic Beverage", "Slurred Speech", "Blood Shot Eyes", "Glassy Eyes", "Impaired Motor

Skills, an admission of alcohol consumption, i.e. two to three glasses of wine, a refusal to take

the pre-screen test and the positive results of the blood test. From the standpoint of the defendant

there is the claim of "going into diabetic shock" requiring the her to pull over to consume some

crackers. There are allegations that could apply to either a diabetic shock or to intoxication, such

as the one car motor vehicle accident; the seeming confusion exhibited by the defendant, such as

not knowing what she was doing on N.Y.S. Route 104 and heading in a direction opposite from

where she resided. Nevertheless, when one considers all the allegations as a whole, the specific

allegations of intoxication provided by the supporting deposition are sufficient to establish

reasonable cause to believe that the defendant violated Vehicle and Traffic Law Section

1192(3).^[FN10] As a result, the People are entitled to rebut the VTL Section 1195(2)(b) presumption

at trial. (See People v. Blair 98 NY2d 722,724, 749 N.Y.S.2d 809,810 [2002]). Therefore, the

motion to dismiss the accusatory instrument, comprised of a simplified traffic information, a [*9]

supporting deposition and a toxicology report, as being insufficient on its face is hereby denied.^[FN11]

[See CPL 170.30(1)(a)]. This constitutes the decision and order of the Court.

Dated: Webster, New York

February 14, 2012

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice