People v Palacios

Criminal Court of the City of New York, Bronx County

Decided on April 9, 2026

Docket No. CR-026312-25BX

David L. Goodwin, J.

Defendant C. PalaciosFN1 was arrested for suspected drunk driving after he allegedly rear-ended another car and exhibited some signs that could be consistent with recent drinking. But a chemical breath test was not conducted until about eight hours later—and by that point, his blood alcohol content ("BAC") was .045, below the presumptive limits for alcohol intoxication or impairment. Palacios was nevertheless charged with driving while intoxicated, driving while intoxicated per se, and driving while ability impaired—V.T.L. § 1192(3), (2), and (1) respectively—with the People relying in part on a retrograde extrapolation theory to show a BAC above the legal limit of .08 at the time of the accident.

In the main branch of his counseled omnibus motion, Palacios argues that the operative accusatory instrument does not contain facts consistent with intoxication or impairment, and is therefore facially insufficient. In particular, he contends that retrograde extrapolation is not a chemical test recognized by V.T.L. § 1194, and cannot be used to prove a per se § 1192(2) count.

As the People now concede, Palacios's challenge to the per se § 1192(2) count has merit. For the reasons set forth below, that count of the superseding information is dismissed as facially insufficient, but the other counts survive.

The branch of Palacios's motion that seeks dismissal on § 30.30 grounds is denied. A [*2]defective count of an otherwise-sufficient accusatory instrument does not yield dismissal of the entire instrument. See People v. Williams, — NY3d —, 2025 NY Slip Op 06535, at *1 (Nov. 25, 2025).

I. Background

The Operative Accusatory Instrument

Via a superseding information, Palacios was charged with driving while intoxicated under V.T.L. § 1192(3), driving while intoxicated per se under § 1192(2), and driving while ability impaired under § 1192(1). He allegedly rear-ended another car at the corner of E. 144 and Southern Boulevard at around 4:05 a.m. on September 21, 2025. An officer observed Palacios to have bloodshot, watery eyes and slurred speech, although not the smell of alcohol on his breath. Palacios also allegedly said, "The car is my brother[']s, I drank one Modelo beer." Defense's Mot., Ex. B at 1.

About eight hours after his arrest, Palacios was administered a chemical breath test. He blew a .045. Id. at 1-2.

The superseding information concluded with an explanation of the chemical test results by the assistant director of forensic toxicology for the Office of Chief Medical Examiner. Using "retrograde extrapolation," which "allows for calculation of what the subject's blood alcohol content was at an earlier period of time," the assistant director "calculated a retrograde extrapolation of defendant's blood alcohol content" based on the 12:33 p.m. blow "of .048 [sic]", concluding that Palacios's BAC "at approximately 04:27 a.m., on September 21, 2025, was between the range of .134 and .199 of one per centum by weight." Id. at 2 (minor typographical errors corrected).

II. The Parties' Dismissal Arguments

The Initial Motion Papers

In the relevant branch of his counseled motion, Palacios argues that the § 1192(3) and (1) counts are facially insufficient because the allegations do not show that he was driving in an intoxicated or impaired condition. Pointing to the presumptions contained in V.T.L. 1195(2)(a), Palacios contends that a .045 BAC means he was neither impaired nor intoxicated. Defense's Mot. ¶¶ 9-18, 23-30. And because, in his view, retrograde extrapolation is not a "test" recognized by V.T.L. § 1194—which defines those tests that may be administered and utilized in the state—a court may not rely on retrograde extrapolation to "cure the defects in the complaint or [] to establish that [a person] was operating a motor vehicle while" in an intoxicated condition or ability-impaired. Id. ¶¶ 19, 31.

As to the per se count under V.T.L. § 1192(2), Palacios focuses on the requirement that the charge be premised on the results of a chemical test "made pursuant to the provisions of [§ 1194]." Id. ¶ 33 (quoting V.T.L. § 1192(2)). Here, the chemical test reflected a result under the per se legal limit of .08. Because a test result of at least .08 is "an essential element of" a § 1192(2) charge—and, again, retrograde extrapolation is not a test recognized by § 1194—the § 1192(2) count is defective and must be dismissed. Defense's Mot. ¶¶ 36-38.

The People respond that the superseding information contains sufficient facts to establish all charged counts, even without retrograde analysis. The circumstances of the accident, partial indicia of intoxication, and Palacios's admission that he had been drinking one beer—combined with his lack of access to alcohol before the chemical test showed alcohol still in his bloodstream eight hours later—all combine to establish both intoxication and impairment. People's Resp. at [*3]6-7.

The People also dispute Palacios's reliance on the presumptions of § 1195(2) and his claim that retrograde extrapolation cannot be considered. Because of the passage of time between arrest and the chemical test, the presumptions of § 1195(2)(a) are of limited relevance. Moreover, in the People's contrary view, retrograde extrapolation is not a separate chemical test, but an "interpretation of the statutory allowed chemical breath test"—an interpretation which, the People argue, has been "frequently allowed" by courts in this state to "extrapolate a BAC reading backward to the time of operation to support a VTL § 1192(2) charge." People's Resp. at 3-5.

Palacios largely reiterates his arguments in reply. He also contends that retrograde extrapolation is dubious science that should not be relied on. See Defense's Reply at 3-6.

Supplemental Briefing Order, Responses, and Supplementation

Via a supplemental briefing order, the parties were requested to address, among other things, the impact of People v. Fratangelo, 23 NY3d 506 (2014). The People now concede that the § 1192(2) count is facially insufficient,FN2 but maintain that the § 1193(3) and (1) counts are still viable. See generally People's Supp. Resp. Palacios reasserts that all counts are facially insufficient, contending that the entire instrument must be dismissed on facial insufficiency grounds and under C.P.L. § 30.30, as the People's concession about the facial insufficiency of the § 1192(2) count means their C.P.L. § 30.30(5-a) certification to the contrary was inaccurate. See generally Defense's Supp. Resp.

III. Facial Sufficiency Standard

Counts of a misdemeanor information are facially sufficient if supported by facts which, if accepted as true and with all reasonable inferences drawn in the People's favor, establish every element of the charged offenses—a prima facie case—while providing reasonable cause to believe Palacios committed them. See People v. Ocasio, 28 NY3d 178, 180 (2016); People v. Dumay, 23 NY3d 518, 522 (2014); People v. Jackson, 18 NY3d 738, 741, 747 (2012). The allegations and pleaded facts must be read in a fair and not overly restrictive or technical way, People v. Hatton, 26 NY3d 364, 370 (2015), and be evaluated in the context of "common sense [and] the significance of the conduct alleged," People v. Gonzalez, 184 Misc 2d 262, 264 (App. Term, 1st Dept. 2000).

IV. Discussion

a. As the People concede, the per se § 1192(2) count is facially insufficient because no valid chemical test shows a BAC at or above .08.

A person commits the offense of driving while intoxicated per seFN3 if he operates a motor [*4]vehicle while his BAC is at or above .08, "as shown by" a chemical test "made pursuant to" V.T.L. § 1194. V.T.L. § 1192(2).

As the People now concede, there is no § 1194 chemical test showing a result at or above that legal limit. The chemical breath test itself, which might otherwise be a test recognized by § 1194, was conducted more than two hours after the arrestFN4 and, in any event, reflected a BAC below the legal limit. Retrograde extrapolation, like other expert testimony, is not itself a chemical test made pursuant to V.T.L. § 1194. See People v. Fratangelo, 23 NY3d 506, 510 (2014) (so holding in the analogous context of the V.T.L. § 1195 presumptions). Therefore, retrograde extrapolation cannot make up for the absence of an actual § 1194 test result at or above the legal limit. See id. (concluding that BAC evidence "contained in the opinion of a defense expert" did not satisfy statutory requirement that BAC evidence be determined by a § 1194 chemical test); see also People v. Ali, 151 Misc 2d 742, 745 (N.Y.C. Crim. Ct., Bronx Co. 1991) (Walker, J.) (observing that tests outside of those authorized by § 1194 "cannot provide the basis for a conviction under VTL 1192(2)").

Because the People lack a viable § 1194 chemical test reflecting a BAC at or above .08, they have not made out a prima facie violation of § 1192(2). See People v. Mertz, 68 NY2d 136, 146 (1986) (explaining that a chemical test result at or above the legal limit "within two hours after arrest establishes prima facie a violation of Vehicle and Traffic Law § 1192(2)").FN5 Accordingly, the § 1192(2) count is facially insufficient and must be dismissed.

b. The remaining § 1192(3) and (1) counts, neither of which is tethered to an § 1194 chemical test result within the triggering range, are facially sufficient.

That leaves the V.T.L. § 1192(3) and (1) counts, which charge "common law" driving while intoxicated and driving while ability impaired. Unlike the subsection (2) per se offense, however, neither of those counts is explicitly tethered to the results of a chemical test conducted pursuant to § 1194. Accordingly, for the reasons set forth below, both of those counts are facially sufficient.

The only disputed elements are the elements of intoxication and impairment as of the time Palacios was driving his car. A person is intoxicated by alcohol when he "is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." People v. Dondorfer, — NY3d —, 2026 NY Slip Op. 00823, at *1 (Feb. 17, 2026) (internal quotation marks and citation omitted). He is impaired if his alcohol consumption has "has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." Id.

Assuming without deciding that the accident, indicia of intoxication, and admission would not suffice—the cases the People rely on to the contrary involve an odor of alcohol on the defendant's breath, which (as Palacios observes, see Defense's Reply at 8) is conspicuous in its absence from this accusatory instrument—the breath test resultFN6 is the missing piece of the puzzle. As common sense suggests, see Gonzalez, 184 Misc 2d at 264, the presence of alcohol in a person's system hours later supports the reasonable inference that the person's BAC was originally higher. Cf. Villalobos v. Cnty. of Nassau, 15 Misc 3d 135(A), 2007 NY Slip Op. 50751(U), at *1-2 (App. Term, 9th & 10th Jud. Dists. 2007) (concluding that a blow of .04 two and a half hours after a collision did not undermine probable cause to arrest because it was reasonable for an officer to conclude, among other things, that the "plaintiff was at least impaired by alcohol" at the time of the accident); see also People v. Cruz, 48 NY2d 419, 428 (1979) ("A layman, including the defendant and those charged with administering the law, should be able to determine whether the defendant's consumption of alcohol has rendered him incapable of operating a motor vehicle as he should."). When viewed in the light most favorable to the People, and with all reasonable inferences drawn in the People's favor, those allegations are sufficient to establish operation while intoxicated and impaired.

Palacios's reliance to the contrary on the presumptions in V.T.L. § 1195 is unavailing. Assuming those presumptions apply to breath tests conducted more than two hours after an arrest, the presumptions would suggest only he was not intoxicated or impaired as of the time of the test, not hours earlier at the time of operation. Cf. Fratangelo, 23 NY3d at 511 (suggesting that a court charge a "you may, but are not required to" jury instruction for expert testimony not fitting within the § 1195 presumptions). Besides, those presumptions are rebuttable, and the [*5]People are entitled to an opportunity to dispute them at trial. People v. Blair, 98 NY2d 722, 723-24 (2002); see also People v. Santos, 43 Misc 3d 136(A), 2014 NY Slip Op. 50672(U), at *1 (App. Term, 1st Dept. 2014) (rejecting facial sufficiency challenge premised in part on .07 BAC presumptions, as remaining evidence suggested intoxication).

Palacios's retrograde extrapolation arguments do not have the same weight for the purposes of the § 1192(3) and 1192(1) counts. Neither of those charges contains statutory language that ties impairment or intoxication to the specific results of a § 1194 chemical test, or requires a § 1194 chemical test at all. Cf. People v. MacDonald, 227 AD2d 672, 673-75 (3d Dept.) (approving of retrograde extrapolation testimony that defendant's BAC, which was tested as below the legal limit, was above the legal limit at the time of operation, in prosecution for V.T.L. § 1192(1) and P.L. § 125.10—neither of which requires a chemical test result), aff'd, 89 NY2d 908, 909 (1996) (clarifying that the defendant was acquitted of § 1192(2)). Retrograde extrapolation testimony remains admissible in prosecutions for these kinds of offenses. See, e.g., People v. Sharpe, 185 AD3d 965, 966 (2d Dept. 2020). And Palacios does not cite any authority for the proposition that retrograde extrapolation, as something other than a "chemical test" under § 1194(2)(a), cannot be considered at the facial sufficiency stage.

Finally, his challenge to the general reliability of retrograde extrapolation implicates an issue outside of the four corners of the instrument.FN7 Latent defects of that sort do not bear on a facial sufficiency analysis. See People v. Slade, 37 NY3d 127, 137 (2021). The individualized issues he identifies can be explored at trial.

In sum, the allegations of the superseding information, and the reasonable inferences drawn from those allegations, establish the facial sufficiency of the driving while intoxicated and driving while ability impaired counts under § 1192(3) and (1). The knowledge that Palacios did, in fact, have alcohol in his system at the time of the crash makes up for the missing "alcohol on his breath" sign of intoxication. Any issues with retroactive extrapolation, meanwhile, are for trial, not for now.

c. The accusatory instrument is not vulnerable to dismissal on § 30.30 statutory speedy trial grounds, because the facial insufficiency of a single count does not invalidate the People's prior [*6]statement of readiness

Finally, although Palacios initially argued that a single defective count requires dismissal on statutory speedy trial grounds under C.P.L. § 30.30, he now concedes that this position is foreclosed by People v. Williams, — NY3d —, 2025 NY Slip Op 06535 (Nov. 25, 2025). Instead, and relying on Judge Rivera's dissent in Williams, he contends that the People's concession about the invalidity of the § 1192(2) count "directly undermines" their C.P.L. § 30.30(5-a) certification; because the People "certif[ied] readiness on an accusatory instrument that [they] later admi[tted] is defective," the People's statement of readiness "was automatically invalid." Defense's Supp. Resp. at 9.

This argument is without merit. Although Judge Rivera's dissent does support Palacios's position, see Williams, 2025 NY Slip Op 06535, at *5 (Rivera, J., dissenting), it remains a dissent that did not command a majority of the Court of Appeals. And while Palacios highlights that "the prosecution itself recognized" the defect in the § 1192(2) count, Defense's Supp. Resp. at 9, that recognition, to the extent it is relevant, occurred only after the supplemental briefing order that flagged decisions neither party had addressed.

Accordingly, the superseding information is not vulnerable to dismissal on § 30.30 grounds.

* * *

As explained above, the § 1192(2) count is facially insufficient. The branch of Palacios's motion seeking dismissal is thus granted in part and that count is dismissed as facially insufficient. But the remaining counts survive, as does the accusatory instrument as a whole.

Any other arguments not specifically addressed above have been considered and determined to be either unavailing or without merit.

Palacios's omnibus requests are addressed in a separate form order filed alongside this one.

Dated: April 9, 2026

Bronx, NY

David L. Goodwin

Judge of the Criminal Court