Monday, September 4, 2017

Ithaca DWI Lawyer: How Do Judges Instruct Juries on DW Intoxication

Proving whether or NOT you were
Hammered is Really the Question?

This is the last of four posts in a multi-blog series on New York Jury Instructions on DWI. The importance of what the jury instructions mean to any case can never be underestimated. Any case moving to trial (and we must assume that to be successful) MUST begin with the end in mind.

In a civil personal injury case we must prove liability and damages. In a DWI case we must defend against the charge and the sub-parts to each element of the offense.

In a DWI or DWAI drugs case this means:

1. The driving (operation)
2. The testing (breath or blood)
* Police testing can also include a DRE (drug recognition evaluation) and/or FST (field sobriety testing)
3. The legal definition of intoxication and/or impairment by alcohol and/or a drug

What is the legal definition of INTOXICATION in New York?

Can you be found legally intoxicated without a BAC test?

Every State Including New York Has Their Own Unique Definition for Common Law DWI

New York State's common law (case law) definition for intoxication comes from People v. Cruz. Whether or not we have a chemical test of blood or breath Intoxication can be shown by the NYS jury instruct  for INTOXICATION:

"A person is in an intoxicated condition when such person has consumed alcohol to the extent that he or she is INCAPABLE, to a SUBSTANTIAL EXTENT, of employing the PHYSICAL and MENTAL (CAP) ABILITIES which he or she is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver."

In-CAPABLE versus CAPABLE, Abilities versus Lack of Abilities to Be Safe, Reasonable, and Prudent

New York comes down to being both mentally and physically capable as a driver. Can the prosecution prove both:

Mentally Incapable?

Physically Incapable?

And in my opinion short of you falling down, drooling upon yourself, and being as we say "hammered" it is more likely that you are IMPAIRED in New York State than INTOXICATED.

The Judge will further instruct the jury as to INTOXICATION EVIDENCE in this charge (jury instruction):

" To determine whether the defendant was INTOXICATED you may consider ALL of the surrounding facts and circumstances including, for  example:

the defendant's physical condition and appearance, balance and coordination, and manner of speech;

the presence or absence of an odor of alcohol;

the manner in which the defendant operated the motor vehicle;

opinion testimony (lay witnesses and police witnesses) regarding defendant's sobriety;

the circumstances of any accident; and

the results of any test of the content of alcohol in the defendant's blood."

We call the majority of this EVIDENCE, circumstantial, after all DIRECT evidence would in fact be an accurate and reliable blood test proving your BAC. Breath tests are indirect measurements of blood alcohol content.

In New York State they (the prosecution) doesn't need a chemical test to prove someone is intoxicated, circumstantial evidence of being incapable is fine. Contesting circumstantial evidence depends upon what is being said, who is saying it, or how it is being viewed.

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