Criminal Attorneys in New York

It is probably common knowledge that anyone driving in New York State who has a blood alcohol content (BAC) of .08 of one per centum or more by weight of alcohol in the driver’s blood is guilty of, at a minimum, the crime of Operating a Motor vehicle While Under the Influence of Alcohol, which is a misdemeanor. See, Vehicle and Traffic Law Section 1192(2). But is the driver exposed to a charge of driving while intoxicated while his BAC is less than the legal limit? Strangely, yes. The adage of, “alcohol affects everyone differently,” comes to mind.

The sanctions, offenses and testing procedures are all codified in the VTL, along with what evidentiary value a court should afford the test results. One may think that if he is driving a vehicle and at the time of doing so his BAC was between .05 and .07 that he is not exposed to the misdemeanor crime of Driving While Intoxicated. If that person looked to the VTL for support of that argument, VTL Section 1195(2)(b), he would find comfort in knowing that such a BAC is prima facie evidence that he was not in an intoxicated condition. What is startling though, is that prosecutors routinely attempt to prosecute someone in this circumstance as driving while intoxicated under what is commonly referred to as the “common law” charge of driving while intoxicated. The term stems from the fact that all crimes are codified in New York and evidence to support such charge are not found in the statute but in the practice of proving the defendant’s mental status, coordinational ability, bearing, and emotional status at the time of his arrest were intoxicated by consuming alcohol.  So, while motions to dismiss these complaints charging DWI under these scenarios are frequently filed, courts are reluctant to grant them. In so doing, the courts afford prosecutors the opportunity to overcome this “rebuttable presumption of non-intoxication” at trial. Read the rest of this entry »

The crime of murder in New York has been codified  under Article 125 of the New York Penal Law, and is pretty concise as to what conduct constitutes murder. In fact, the article even covers for circumstances under which a person causes the death of another person  while operating a motor vehicle while under the influence of alcohol or drugs, as laid out in NYPL Section 125.12, Vehicular Manslaughter in Second Degree. That section has been amended by the legislature to make it easier to prosecute defendants who kill someone while driving under the influence. In the past the prosecution had to prove that not only was the defendant intoxicated while driving but also was acting in a reckless manner. The statute now removes the need to prove the reckless element.

This statutory construct is now being ignored by prosecutors in New York as they have attempted to broaden the crime of murder in the second degree to include scenarios as the one discussed above, as well as other scenarios, by morphing the concept and definition of depraved indifference murder. Increasingly, prosecutors are taking cases of vehicular manslaughter and acts of negligence and trying to argue that the defendants are guilty of depraved indifference murder, found in PL Section 125.25 (2). Read the rest of this entry »