You are here: / / THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH DRIVING WHEN HIS ABILITY...
,

THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH DRIVING WHEN HIS ABILITY WAS IMPAIRED BY MARIJUANA WAS FACIALLY SUFFICIENT; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissenting opinion, determined that the accusatory instrument charging defendant with driving while his ability was impaired by marijuana was facially sufficient. The court noted that the Report of Refusal (re: a chemical test for drugs) could not be considered and that, because defendant waived prosecution by information, the less demanding standard for a misdemeanor complaint was applied:

In the accusatory instrument, defendant’s arresting officer made the following factual allegations:

“I observed the defendant driving a car . . . (the key was in the ignition, the engine was running, and the defendant was behind the wheel);”I know defendant was under the influence of drugs because I smelled an odor of marijuana coming from the defendant’s clothing. I observed that the defendant had watery and bloodshot eyes, and I observed that the defendant had ash containing marijuana on his pants. The defendant stated, in substance: I had two puffs of marijuana before you stopped me.“I advised the defendant of his rights regarding the taking of a test to determine the presence of drugs in his urine and the defendant refused to take the test.” * * *​

… The arresting officer observed physical manifestations of the effects of marijuana—specifically, that defendant had watery and bloodshot eyes. Additionally, defendant refused a urine test to determine the presence of drugs in his system. Lower courts have consistently held that such refusal, when considered along with the other allegations in the accusatory instrument, is relevant to determining reasonable cause to believe that the defendant drove while intoxicated or impaired … . … [A] defendant’s refusal to take a chemical test evince consciousness of guilt. People v Morel, 2026 NY Slip Op 00822, CtApp 2-17-26

Practice Point: Here the Report of Refusal was not incorporated into the accusatory instrument and therefore could not be considered in determining the sufficiency of the accusatory instrument.

Practice Point: Because defendant waived prosecution by information, the less demanding standard for the sufficiency of a misdemeanor complaint was applied.

Practice Point: A refusal to take a chemical test evinces a consciousness of guilt and can be considered in analyzing the sufficiency of an accusatory instrument.

 

You might also like
SIX TOWN OF NEWBURGH VOTERS CHALLENGEDTHE TOWN’S AT-LARGE ELECTION SYSTEM UNDER THE VOTER DILUTION STATUTE WHICH PROHIBITS THE DILUTION OF VOTES OF MEMBERS OF A PROTECTED CLASS, HERE BLACKS AND HISPANICS; THE TOWN RESPONDED WITH A CONSTITUTIONAL CHALLENGE TO THE VOTER DILUTION STATUTE; THE COURT OF APPEALS HELD THE TOWN, A GOVERNMENTAL ENTITY CREATED BY THE STATE LEGISLATURE, COULD NOT CHALLENGE A STATE STATUTE AS FACIALLY UNCONSTITUTIONAL (CT APP).
Presumption of Vindictive Sentencing Did Not Apply Here Where Defendant Rejected a Plea Offer with a Sentence of Ten Years Probation and, After Trial, Was Sentenced to 10 to 20 Years in Prison
Although the Police Could Have Done More to Make Sure Defendant Was Not Represented by Counsel Before Questioning Him, Defendant’s Prior Attorney’s Statement to the Police that He Was No Longer Representing the Defendant Was Enough
BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP).
Application of the Emergency Doctrine Presented a Mixed Question of Law and Fact which Could Not Be Reviewed by the Court of Appeals
Experts’ Failure to Address Proximate Cause Precluded Summary Judgment
ELECTRONIC LOGGING DEVICES (ELD’S) WHICH KEEP TRACK OF COMMERCIAL TRUCKERS’ LOCATION, HOURS OF OPERATION AND MILES DO NOT FACILITATE UNREASONABLE SEARCHES; THE TRUCKING INDUSTRY IS HEAVILY REGULATED AND THE ELD’S AIM TO PREVENT DRIVER FATIGUE (CT APP).
FAMILY COURT PROPERLY IMPOSED THREE CONSECUTIVE SIX-MONTH JAIL TERMS UPON FATHER WHO WILFULLY FAILED TO PAY CHILD SUPPORT.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN 2024, ERLINGER V US HELD THAT A JURY MUST DETERMINE WHETHER A LOOKBACK PERIOD... THE STANDARD FOR “IMPAIRMENT BY ALCOHOL AND DRUGS” IS THE SAME AS...