Thomas J. DiSalvo, J. The defendant was charged with driving while ability impaired

by drugs, VTL § 1192 (4), moved from lane unsafely, VTL § 1128 (a), and passing a red light,

VTL § 1111 (d) (1). The matter was set down for a bench trial, which was conducted on April

11, 2014. The People presented three witnesses. At the end of the People's case, defense

counsel made a motion for a trial order of dismissal pursuant to CPL § 290.10 (1). The court

reserved on said motion. The defendant did not call any witnesses.

The People's first witness was William A. Galbraith, who was operating a motorcycle

southbound on Hard Road in the Town of Webster at approximately 5:12 P.M. on July 27, 2013.

The witness was stopped at a red light when he noticed a motor vehicle heading northbound on

Hard Road toward the said light from the other direction. The said vehicle continued to slow

down as it approached the light. However, the vehicle failed to stop at the light and continued

past the traffic light, while drifting into the lane to its left toward the witness. The vehicle came [*2]

in contact with the witness' motorcycle, causing it to go down with the witness on it. Because the vehicle was going so slow the motorcycle did not sustain any significant damage, nor was the

driver of the motorcycle injured. Mr. Galbraith testified that a white female driver emerged

from the car. She appeared to the witness as being confused. However, the witness could not

definitively state whether the car that hit his motorcycle went through the traffic light when it

was red.

The next witness to testify was Officer Charles Korherr of the Webster Police

Department. He was dispatched to the scene by the 911 Center to handle a motor vehicle

accident involving a downed motorcycle. When he arrived on the scene he did observe a

motorcycle on the ground, with a grey Ford Taurus on it. He later determined that the

motorcycle belonged to William Galbraith. He also determined that the driver of the Ford

Taurus, was Michelle R. Rice, after obtaining her drivers license. He was able to identify the

defendant in court for the record. When he first saw the defendant at the accident scene, she

appeared to him to be "dazed" and "out of it". He inquired as to whether she had been drinking

any alcoholic beverages and whether she had taken any prescription medications. The officer

testified that the defendant told him she had not been drinking, but had taken some prescription

medications. He then ordered her from the car, but he had to assist her in doing so, since she was

unable to stand on her own. Officer Korherr described the defendant's speech as slurred and

mumbled. The witness attempted to tell him what medications she was taking, but he could not

understand her. The officer escorted her off the road where he was able to administer the

horizontal gaze nystagmus test [HGN]. He went on to testify to that she failed the HGN test,

after he observed all the required clues in both of her eyes. The officer then attempted to have [*3]

the defendant perform the walk and turn test, but the test had to be discontinued, since the

defendant was so unsteady as to not be able to maintain the start position. The defendant was put under arrest at that point for driving while intoxicated and was transported to the Webster Police

Department. Officer Korherr made a request for a drug recognition expert to be summoned to

said department. As a result, Greece Police Officer Nicholas Marello was sent to Webster to

continue the investigation.

Officer Marello was the People's third witness. He testified as to his training and

experience as a drug recognition expert. He then testified that when he arrived at the Webster

Police Department he observed the defendant sitting on a bench. He administered a pre-screen

breath test, which was negative for alcohol. He further identified the defendant for the record as

the person with whom he dealt on July 27, 2013. The officer testified to having observed the

defendant on that evening as exhibiting a "thousand yard stare", glazed eyes, droopy eye lids and

appearing very relaxed. He also performed an HGN test that the defendant failed. Finally, the

officer administered the modified Romberg balance test, wherein the defendant would have to

close her eyes and estimate the passage of thirty seconds. But the test was discontinued after five

seconds when the defendant opened her eyes because she was falling backward. Miranda

warnings were then read to the defendant. Subsequently the defendant did admit to the Officer

that she had ingested some prescription medication for seizure disorders, Xanax and a narcotic

analgesic.The officer then made the determination that the defendant was unable to

operate a motor vehicle safely. Processing was completed and she was transported to Rochester

General Hospital for a blood draw.

A "Toxicology Report" prepared by the Monroe County Forensic Toxicology Laboratory [*4]

was entered into evidence by the People without objection. The report indicated that blood was

drawn from the defendant on July 27, 2013 at "20:27 Hrs" [8:27 P.M.]. The toxicology report

indicated that the defendant's blood was positive for "alprazolam" [0.055 micrograms/ml.],

"lamotrigine" [10.9 micorgrams/ml.], and "topiramate". Presumably at the hospital and prior to

the blood draw Officer Korherr issued three simplified traffic informations for the charges set out

above.

Defense counsel's motion for a trial order of dismissal is based on the fact that the

defendant was charged with Vehicle and Traffic Law § 1192 (4), i.e. driving while ability

impaired by drugs and not Vehicle and Traffic Law § 1192 (4-a), i.e. driving while ability

impaired by the combined influence of drugs or alcohol and any drug or drugs. His argument

is based on the fact that the evidence presented established that any impairment suffered by the

defendant was the result of a combination of drugs. However, his client was charged under a

statute that prohibits a person from driving while impaired by a single drug. Thus his argument

is that his client was charged under the wrong provision of the law, resulting in the failure of the

People to prove every element of the offense charged.

Have the people presented evidence at trial legally sufficient to establish the offense of

driving while ability impaired by drugs pursuant to VTL § 1192 (4)?

VTL § 1192 (4). Vehicle and Traffic Law Section 1192 (4) states "No person shall

operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by

the use of a drug as defined in this chapter." This begs the question as to the meaning of the [*5]

phrase "as defined in this chapter". "The words as defined in this chapter' refer to VTL § 114-a

which defines a drug as follows:

The term drug' when used in this chapter, means and includes

any substance listed in section thirty-three hundred six of the pub-

lic health law.'" (Gerstenzang, Handling the DWI Case in New York,

§ 10:1 at 200 [2013 -2014 ed])

Only one of the three drugs set out in the toxicology report is listed as a controlled substance

under New York's Public Health Law § 3306. That is the drug alprazolam, which is found

specifically at Public Health Law § 3306 Schedule IV ( c) (1). The remaining two medications

set out in the toxicology report, to wit: lamotrigine and topiramate are not considered controlled

substances as defined by the New York Public Health Law.

"In order for the People to prove the defendant guilty beyond a reasonable doubt

they must prove the following elements of the crime:

(1) The defendant ingested a drug.

(2) The drug ingested by the defendant is one prescribed by Public Health Law

§ 3306 (See, Vehicle and Traffic Law § 114-a.)

(3)After ingesting the drug, the defendant operated a motor vehicle . (See,

Vehicle and Traffic Law § 125.)

(4)While operating his motor vehicle the defendant's ability to operate the

motor vehicle was impaired by the ingestion of the drug." (People v.

Kahn, 160 Misc 2d 594,598, 610 N.Y.S.2d 701,703 [1994])

That the offending medication must be one that is included in the extensive list of drugs set out

in Public Health Law Section 3306 continues to be the standard in all VTL § 1194 (4)

prosecutions. "A Driving while impaired by drugs prosecution requires that the individual's

impairment be shown to have been caused by a drug specifically listed in the Public Health

Law." (People v. Rose, 8 Misc 3d 184, 185, 794 N.Y.S.2d 630, 631 [2005]) However, [*6]

nowhere does the law limit a conviction under this statute to a situation where only one such

controlled substance has been found to be in the defendant's blood. Nevertheless, the fact is that

the only controlled substance, as that term is defined by Public Health Law § 3306, found to be in

the defendant's blood was the drug, alprazolam. The remaining medications, namely

"lamotrigine" and "topiramate" cannot be the basis for a conviction under VTL § 1192 (4), since

they are not listed in that statute.

VTL § 1194 (4-a). Vehicle and Traffic Law Section 1194 (4-a) states as follows: " No

person shall operate a motor vehicle while the person's ability to operate such motor vehicle is

impaired by the combined influence of drugs or of alcohol and any drug or drugs." Thus "VTL

§ 1194 (4-a) makes it a crime for a person to operate a motor vehicle while his or her ability to do

so is impaired by a combination of either: (a) 2 or more drugs, or (b) alcohol and a drug or

drugs." (Gerstenzang, Handling the DWI Case in New York, § 10:1 at 222 [2013 -2014 ed])

Defense counsel's motion for a trial order of dismissal is based on the concept that the

people should have charged the defendant with violating VTL § 1192 (4-a), because as the

toxicology report indicates there was more than just one drug in her blood stream. However, as

previously stated the other two drugs found in the defendant's blood, i.e. "lamotrigine" and

"topiramate" are not controlled substances as defined by Public Health Law § 3306. Thus a

prosecution alleging the combined affect of alprazolam, which is a controlled substance, and

lamotrigine and topiramate, which are not controlled substances, as violating VTL § 1192 (4-a)

could not be sustained. In People v. Gonzalez, 90 AD3d 1668, 935 N.Y.S.2d 826, [ 4th Dept

2011] the defendant argued that his convictions to common law driving while intoxicated, VTL §

1992 (3) and driving while ability impaired by drugs, VTL 1192 § (4), should be overturned. His [*7]

contention was "... that the evidence at trial established that he was allegedly impaired by the

combined effects of alcohol and Vicodine, and that the convictions of DWI and DWAI must be

reversed because the People failed to present the requisite evidence of impairment by each of the

substances separately."^[FN1] The court rejected that argument. The Appellate Division upheld the

conviction saying that "With respect to the DWAI conviction, the jury had to find that the

defendant ingested a drug listed in the Public Health Law § 3306, that the defendant operated a

motor vehicle, and that his ability to operate the motor vehicle was impaired by the drug (see

Vehicle and Traffic Law §§ 114-a, 1192 [4])." Nevertheless, the defendant herein makes a

similar argument, except that the substance combination in question is the three drugs set out in

the toxicology report. In this case the People presented legally sufficient evidence to establish

the charge of driving while ability impaired by drugs, VTL § 1192 (4), based on the ingestion by

the defendant of one controlled subtance, to wit: alprazolam. The fact that there were two other

drugs in the defendant's blood, which are not listed under Public Health Law § 3306, even if they

allegedly had some effect on the defendant's ability to drive, is irrelevant to the charge of DWAI

(1192 [4]).

Conclusion.

The evidence presented by the People at trial was legally sufficient to establish the charge

of driving while ability impaired by drugs (VTL 1992 [4]). Thus the defendant's motion for a

trial order of dismissal is hereby denied. The matter is returned to the trial calender for return of

the verdict. This constitutes the decision and order of the court.

Dated: April 29, 2014 [*8]

Webster, New York

_____________________________

Hon. Thomas J. DiSalvo

Webster Town Justice