Jurisdictional Statement — Cruz v. New York
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Gupreme Court, U.
FILED
FEB 15 1980
79-6094
LERK
“MICHAEL RODAK, JR., C
IN THE
SUPREME COURT OF THE UNITED STATES
1978 TERM
NO.
HECTOR CRUZ,
Appellant,
NEW YORK.
APPLICATION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
TO: THE HONORABLE, THE CHIEF JUSTICE AND
THE ASSOCIATE JUSTICES OF THE SUPREME
COURT OF THE UNITED STATES:
HECTOR CRUZ, appellant herein, respectfully applies
for leave to proceed in forma pauperis in connection with
the docketing of his appeal from a judgment of the New York
Court of Appeals. Appellant's affidavit in support of the
within application is annexed hereto.
Dated: February 18, 1980
New York, New York
Respectfully submitted,
SH ee
Chile Bev. < Ley
ILLIAM E. A RSTEIN.
The Legal Aid Society
15 Park Row - 18th Floor
New York, New York 10038
(212) 577-3420
Counsel for Appellant
STATE OF NEW JERSEY )
COUNTY OF Huncex )
HECTOR CRUZ, being duly sworn, deposes and says:
I am the petitioner herein and I make this
affidavit in support of the within application to proceed
in forma pauperis with respect to a judgment of the New
York Court of Appeals rendered on November 20, 1979,
which reversed an order of the Appellate Term, First
Department, entered on July 6, 1979, which affirmed an
order of the Criminal Court of the City of New York,
Bronx County, rendered on October 31, 1978, dismissing
an information which charged me with driving while under
the influence of alcohol.
I am presently employed at Resistive Element Corp.,
346 Bordentown Road, South Amboy, New Jersey, and earn
$10,000 per year.
I am without funds to pay the cost of filing this
petition, printing the record and briefs, or retaining
counsel.
On appeal to the New York appellate courts, I was
allowed to proceed as a poor person and was represented
by assigned counsel associated with the Legal Aid Society
of the City of New York. Such counsel have agreed to
continue to represent me in this Court without expense
to me.
I believe my case is meritorious, and this application
is not made for purposes of delay.
Sworn to before me this 41H
day of February, 1980.
RAUL A. JIMENEZ’
NOTARY PUBLIC OF NSW JERSEY
i Commission Expires Fedruary 14, 1982
ee ee ed ee
| prema Court, Us
EILLED
79-6094 | FEB 15 W380
MICHAEL RODAK, JR., CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
1979 TERM
No. 79-
HECTOR CRUZ,
Appellant,
-against-
NEW YORK
ON APPEAL FROM THE NEW YORK COURT OF APPEALS
JURISDICTIONAL STATEMENT
WILLIAM E. HELLERSTEIN
The Legal Aid Society
15 Park Row - 18th Floor
New York, New York 10038
[212] 577-3420
THOMAS H. BUSCH
Of Counsel
INDEX
JURISDICTIONAL aa thd SO wala Odie hw a kebbkca be eeeee .
CITATION TO OPINIONS PAR SERONGN Kee MRbo Ae Whee band b di
CORSO MUROUNS ei NEw es cb skin bé cde wees eoccce Swe Wéw ne Beees 60%
Se ee OD ha kt ed sk eho cuweebed coneeacs wTRrttice
CONSTITUTIONAL PROVISION SK Oh ESd Chin hAKd ena e oe adele
STATUTORY PROVISIONS SVOLVED . oss cecsvcces
STATEMENT OF THE CASE.....ccccccccccs LARP APEES EATERS
THE QUESTION PRESENTED IS PEE oes cnguwdbecbveceuees
+ sista s sictagupaminte CE TE ET TL Te nee coer
APPENDICES
OPINION OF THE NEW YORK COURT OF APPEALS..........
MAJORITY AND DISSENTING OPINIONS OF THE
APPELLATE ie ea ee Pe Ee ee fn ee
ORDER AND OPINION OF THE CRIMINAL COURT
OF THE CITY OF NEW YORK, BRONX COUNTY.......... eee
REMITTITUR OF THE NEW YORK COURT OF APPEALS.......
NOTICE OF APPEAL TO THE SUPREME COURT OF
THE UNITED PE + 66 ERE ead OWLS 0% os Keke KE xdea x
CITATIONS
Cases:
Abney v. United States, 431 U.S. 651 Ng } Sai eae ae
Bass v. Commonwealth, 209 va. 422, 164 S.E.2d 667
POUT NAME T MEd 6 NaNG bs Veh cke at veda: ere e eee eeeee
Brooks v. State, 41 Md. App. 123, 395 A.2da 1224
(Ct. Spec. App. 1979)
2.28. SSO O's 60S 6 68 £8 6S 86616 4G OS & OB 4 6 .
Colautti v. Franklin, 0.8. , 58 L.Ed.2d 596
PUM ROREE SERA ES £4 ohh Ki Os 466 bike hen eeu eeeeee ee
convent v. General Construction Co., 296 U.S. 385
Oey re Preyer sr reyer jee een ney fern
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).....
Hudson Distributors, Inc. v. Eli Lilly & Co.,
UeBs
Lanzetta v. New Jersey, 306 U.S. 451 PRUE <2-cate bak base
Nash v. United States, 229 U.S. Pe SEG bob ale cies Gawe
Papachristou v. Jacksonville, 405 U.S. 156,.-162
\
People v. Bevilacqua, 12 Misc.2d 558, 170 N.Y.S.2a
(Essex (er. Ct. Pea cee ah koe 4-04 Ute hee ead Od we tckae
People v. Discala, 45 N.Y.2d-38, 407 N.Y.S.2a 660
tT37
12
Al
Bl
Cl
D1
El
7,9,10,12
7,8,11,12
2,3
atl nn 2 0
wesels Vv. Eboli, 34 N.Y¥.2d 281, 357 N.y.S.2da 435
TREGETEVANSONS SUL EADANAAD HONE CWA ON Ob 60K hoo hoo hk aw,
People v. Graser, 90 Misc.2d 219, 393 N.Y.S.2da 1009
Town Ct. of Amherst, Erie Co. DURE Uti be winds ku ar arate Ain
People v. Grejszak, 100 Misc.2d 1045, 420 N.Y.S.2d
i eee | gS | ee nas veaebee
People v. Kapsuris, 89 Misc.2d 634, 392 N.Y.S.2d 785
trie es Rs. SEIOl < ones acne aie sb ale: balun els a. 8 ere Pure are
eos v. Lambert, 395 Mich. 296, 235 N.W.2da 338
FORA CKS ORES eke vee Tee eee eee ere ver eer eres
ae itse te
People v. Weaver, 188 App. Div. 395, 177 N.Y.S. 71
3a Fe es CAG sada eh eahainAy als Cabawcladuc..
Roe v. Wade, 410 U.S. 113 Soe) ae ee re eee ON aes
Shaffer v. Heitner, 433 U:S. 186 (1977)......cccsccccce....
State v. Bryce, 243 A.2d 726 (Me. 1968)............... ° °
State v. Pirkey, 203 Ore. 697, 281 P.2d 698 (1955).........
Thompson v. People, 181 Colo. 194, 510 P.2da 311
United States v. Batchelder, uss. , 60 L.Ed.2d 755
Ra pare ap iey rie gong cee ReUee keee & OR e tae ole Srna eek
United States v. Channel, 423 F. Supp. 1017 (D. Md.
SPOUTS hE 806 4bS hes ond UEKE WHA RE LOR ls cc Serko we ek oe
United States v. Harriss, 347 U.S. 612 6h) ) eee ler khan kha
United States v. POE aaees S50 Wilh. 1 TROOPS bi livvc vk vk end.
STATUTES
Colo. Rev. Stat. §42-4-1202(1) (a) (b).. cece cece ccceee is eben
SNTe Me Bs Gi BOTs i wat ie ea khan ksi ce TOL T ELA e TTT coe
Md. Transp. Code Ann. §21-902(a) (b)........ rorentheesekeu see ave
Mich. Comp. Laws POE e Ab bs acboekereéckwecieine ere er
1977 N.J. Laws, c. 29, Base shdinbedaeése Ka Re Ake ewes Seioe eae
1910 N.Y. Laws, c. 374, i Ere eee eT eee Teer ecccces TLeTT
1960 N.Y. Laws, c. 184, Dee UCN UNN Cbd t sie cneh a bawdn wekenecees
N.Y. Veh. & Traf. Law §510 PE Ca Ch pCa weve KGL es a damebes
N.Y. Veh. & Traf. Law §1195 EE 00S i hal cd odo bob wiaee Bd
N.Y. Veh. & Traf. Law §1800 a ee esees
35 Pa. Stat. Ann. §6602 (Purdon)........ccccccccccccee eccccces
35 Pa. Stat. Ann. §6605(a) (Purdon).............. ee eesecaceccce
1972 Va. Acts, c. PPV third RAGE OED EOR oaks 40000444 Koike de kaw cd
COMMENTARY
1071 wn wv
IN THE
SUPREME COURT OF THE UNITED STATES
1979 TERM
No. 79-
HECTOR CRUZ,
Appellant,
-against-
NEW YORK
ON APPEAL FROM THE NEW YORK COURT OF APPEALS
JURISDICTIONAL STATEMENT
Appellant, Hector Cruz, appeals from a judgment of the New York
Court of Appeals, entered November 20, 1979, which reversed an order
of the Supreme Court of the State of New York, Appellate Term, First
Department, which had affirmed an order of the Criminal Court of the
City of New York, Bronx County, dismissing an information which charged
appellant with a violation of Section 1192 of New York's Vehicle and
Traffic Law. Appellant submits this Statement to show that the Court
has jurisdiction of the appeal and that substantial questions are pre-
sented.
CITATION TO OPINIONS BELOW
The opinion of the New York Court of Appeals is officially
reported at 48 N.Y.2d 419 and is annexed hereto as Appendix A. The
majority and dissenting opinions of the Appellate Term are officially
reported at 99 Misc.2d 634 and are annexed as Appendix B. The opinion
of the Criminal Court is unreported and is annexed hereto as Appendix C.
JURISDICTION
In reversing the iuaib hain Term and reinstating the accusatory
instrument against appellant the Court of Appeals upheld the constitu-
tionality of Section 1192 of New York's Vehicle and Traffic caw. The
judgment of the Court of Appeals was entered on November 20, 1979, and
is annexed hereto as Appendix PD. A notice of appeal was filed in
ole
RD Sto
etna ee
Criminal Court, Bronx County, the court possessed of the record, on
January 28, 1980, and is annexed as Appendix E. The Court's juris-
diction is invoked pursuant to 28 U.S.C. §1257(2).
The complaint against appellant was dismissed by the trial court
on the ground that Section 1192 of the Vehicle and Traffic Law, sub-
divisions (1) and (3), which prohibit a person from operating a motor
vehicle while his ability to do so is "impaired by the consumption of
alcohol," and “while in an intoxicated condition," are unconstitution-
ally vague (App. C). On the People's appeal to the Appellate Term the
dismissal order was affirmed by a 2-1 vote, on the same ground (App. B).
The New York Court of Appeals, however, reversed, sustained the consti-
tutionality of the statutes and reinstated the accusatory instrument
(App. A).
Although further state proceedings are contemplated, the judgment
is final within the meaning of 28 U.S.C. §1257(2). The jurisdiction
of the Court is sustained by the following decisions: Shaffer v.
Heitner, 433 U.S. 186, 195-96 n.12 (1977); Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469, 482-87 (1975); Hudson Distributors, Inc. v. Eli
Lilly & Co., 377 U.S. 386, 389 n.4 (1964); see Abney v. United States,
431 U.S. 651, 659 n.4 (1977) .*
*The Court has repeatedly determined that it has jurisdiction where a
state statute had been held constitutional by the highest state court,
despite the fact that further state proceedings were pending which
could possibly moot the constitutional issue. In Shaffer v. Heitner,
433 U.S. 186 (1977), as in the instant case, the Due Process Clause of
the Fourteenth Amendment was implicated; at issue was whether the
Delaware sequestration statute unconstitutionally permitted the state
courts to exercise jurisdiction despite the absence of sufficient
contacts between the defendants, the litigation, and the State of
Delaware. Id. at 189. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,
(1975), the issue was whether the First and Fourteenth Amendments were
violated by a Georgia statute which permitted a cause of action for
damages for invasion of Privacy caused by the publication of the name
of a rape victim. Id. at 471. In Hudson Distributors, Inc. v. Eli Lilly
& Co., 377 U.S. 386 (1964), the constitutional issue apparently was
whether the Ohio Fair Trade Act violated the Commerce Clause of the
United States Constitution, Art. 1, §8, cl. 3; this resolved to the
issue of whether state fair trade laws were permitted by the McGuire
Id. at 386-88.
In each case, the federal issue was not subject to further review
in the state courts, but would have been mooted had the defendant pre-
vailed at trial on non-federal grounds. Nevertheless, the Court noted
jurisdiction because if the state court had erroneously upheld the
statute there should have been no trial at all. Shaffer, su ra, 433 U.S.
at 195-96 n.12; Cox, Supra, 420 U.S. at 485. In Tox, supra, the Court
articulated its pragmatic approach to finality, 420 U.S. at 476-87, and
found that this approach justified its determination that the judoment
(fn. cont'd.)
QUESTIONS PRESENTED
Whether Section 1192 of the New York Vehicle and Traffic Law,
which makes it an infraction to drive while the ability to operate
a motor vehicle "is impaired by the consumption of alcohol" and a
misdemeanor to drive "while in an intoxicated condition," but does
not define the difference between the two, is unconstitutionally
vague.
CONSTITUTIONAL PROVISION INVOLVED
United States Constitution, Amendment XIV.
STATUTORY PROVISIONS INVOLVED
New York Vehicle and Traffic Law, §§1192, 1194, 1195 (62A
McKinney's Laws, Title 7, Article 31):
§1192. Operating a motor vehicle while under the
influence of alcohol or drugs
1. No person shall operate a motor vehicle while
his ability to operate such motor vehicle is impaired
by the consumption of alcohol.
2. No person shall operate a motor vehicle while
he has .10 of one per centum or more by weight of
alcohol in his blood as shown by chemical analysis of
his blood, breath, urine or saliva, made pursuant to
the provisions of section eleven hundred ninety-four
of this chapter.
(fn. cont'd.)
was final:
Given these factors--that the litigation could be
terminated by our decision on the merits and that a
failure to decide the question now will leave the
press in Georgia operating in the shadow of the civil
and criminal sanctions of a rule of law and a statute
the constitutionality of which is in serious doubt--we
find that reaching the merits is consistent with the
pragmatic approach that we have followed in the past
in determining finality.
Id., 420 U.S. at 486. Cox, Shaffer, and Hudson were civil cases, but
the construction given to 28 U.S.C. §1257 in civil cases applies equally
in criminal cases. See Abney v. United States, 431 U.S. 651, 659 n.4
(1977) (construction SF sIs5T~
This pragmatic approach to finality justifies a finding of finality
here as well. If a trial were held, appellant might prevail upon non-
federal grounds, but if the statute is unconstitutional there should be
no trial at all. Furthermore, because the statute would remain in
effect, New York drivers would be forced to operate in the shadow of the
criminal sanctions of a rule of law and a statute the constitutionality
of which is in serious doubt. Eroded would be the federal policy,
implicit in the Due Process Clause, that "no one may be required at
peril of life, liberty or property to speculate as to the meaning of
penal statutes." Lanzetta v. New York, 306 U.S. 451, 453 (1939).
applies equally to civil and criminal cases).
ltr. ane
3. No person shall operate a motor vehicle while
he is in an intoxicated condition.
4. No person shall operate a motor vehicle while
his ability to operate such a motor vehicle is
impaired by the use of a drug as defined in this
chapter.
5. A violation of subdivisions two, three or four
of this section shall be a misdemeanor and shall be
punishable by imprisonment in a penitentiary or county
jail for not more than one year, or by a fine of not
more than five hundred dollars, or by both such fine
and imprisonment. A person who operates a vehicle in
violation of subdivisions two or three of this section
after having been convicted of a violation of subdivi-
sions two or three of this section, or of driving while
intoxicated, within the preceding ten years, shall be
guilty of a felony. A person who operates a vehicle
in violation of subdivision four of this section, after
having been convicted of a violation of subdivision
four of this section, or of driving while his ability
is impaired by the use of drugs within the preceding
ten years, shall be guilty of a felony.
* * *
§1194. Chemical tests
1. Any person who operates a motor vehicle in this
state shall be deemed to have given his consent to a
chemical test of his breath, blood, urine, or saliva for
the purpose of determining the alcoholic or drug content
of his blood....
* * *
4. Evidence of a refusal to submit to such chemical
test shall be admissible in any trial, proceeding or
hearing based upon a violation of the provisions of sec-
tion eleven hundred ninety-two of this chapter but only
upon a showing that the person was given sufficient warn-
ing, in clear and unequivocal language, of the effect of
such r *usal and that the person persisted in his refusal.
§1195. Chemical test evidence
1. Upon the trial of any action or proceeding aris-
ing out of actions alleged to have been committed by any
person arrested for a violation of any subdivision of
section eleven hundred ninety-two, the court shall admit
evidence of the amount of alcohol or drugs in the defend-
ant's blood as shown by a test administered pursuant to
the provisions of section eleven hundred ninety-four of
this chapter.
2. The following effect shall be given to evidence
of blood-alcohol content, as determined by such tests, of
a person arrested for a violation of section eleven
hundred ninety-two:
(a) Evidence that there was .05 of one per centum or
less by weight of alcohol in such person's blood shall be
prima facie evidence that the ability of such person to
operate a motor vehicle was not impaired by the consump-
tion of alcohol, and that such person was not in an intoxi-
cated condition;
(b) Evidence that there was more than .05 of one per
centum but not more than .07 of one per centum by weight
of alcohol in such person's blood shall be prima facie
evidence that such person was not in an intoxicated
condition, but such evidence shall be relevant evi-
dence, but shall not be given prima facie effect, in
determining whether the ability of such person to
operate a motor vehicle was impaired by the consump-
tion of alcohol.
(c) Evidence that there was more than .07 of one
per centum but less than .10 of one per centum by
weight of alcohol in his blood shall be prima facie
evidence that such person was not in an intoxicated
condition, but such evidence shall be given prima
facie effect in determining whether the ability of
such person to operate a motor vehicle was impaired
by the consumption of alcohol.
STATEMENT OF THE CASE
An information filed in the Criminal Court of New York City,
Bronx County, charged appellant with resisting arrest and operating a
motor vehicle "while under the influence of alcohol" on January 28,
1978. The latter charge referred to Section 1192 of the Vehicle and
Traffic Law, which provides:
1. No person shall operate a motor vehicle while
his ability to operate such a motor vehicle is
impaired by the consumption of alcohol.
* * *
3. No person shall operate a motor vehicle while
his is in an intoxicated condition.
Subdivision 1 (impaired) is a traffic infraction, punishable by
a fine of up to $50, imprisonment of up to 15 days, or both, and a
mandatory 60-day suspension of driving privileges. V.T.L. §§510(2) (b)
(i), 1800(b). The first violation of subdivision 3 (intoxicated) is
a misdemeanor, punishable by a fine of up to $500, imprisonment of up
to one year, and a mandatory license revocation; the second violation
is a felony. V.T.L. §§510(2) (a) (iii), 1192(5).
On February 15, 1978, after a probable c use hearing, the charge
of resisting arrest was dismissed. At the hearing, the arresting
officer testified that appellant refused to take a breathalyzer test.
Subsequent to the hearing, appellant moved to dismiss the infor-
mation on the ground that Section 1192(1) (3) is unconstitutionally
vague because it provides no definition of impaired, intoxicated, or
the difference between the two. The court sustained the motion, hold-
ing that, especially when breathalyzer results are unavailable, the
statute is unconstitutionally vague for failing to provide any useful
guideline to determine the distinction between the two offenses (App. C,
8-9).
a
‘so is "impaired by alcohol" a traffic infraction and when one is in an
: ‘a
The order of dismissal was affirmed in a 2-1 decision of the
Appellate Term. The majority held that the statute is vague both
because it provides the citizen no notice of whether his conduct is
criminal and because it provides the trial court no ascertainable
standards to apply to the acts of a driver who is less than "very,
very drunk" (App. B, 2-3). The dissent, however, maintained that no
notice of the difference between "impaired" and "intoxicated" is
required, and that the statute is not unconstitutional because it
notifies the driver that if he drinks and drives he may violate it
(App. B, 7-8).
The People appealed to the New York Court of Appeals which,
unanimously, found the statute to be constitutional and ordered the
accusatory instrument reinstated (App. A, 6).
Without defining "impaired," the Court of Appeals held that, for
subdivision 1 of §1192,
the question in each case is whether, by voluntarily
consuming alcohol, this particular defendant 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.
(App. A, 5).
The Court found that "intoxicated" is a term with a variety of
meanings, but that did not deter it from reading one of the variety
into the statute:
In sum, intoxication is a greater degree of impair-
ment which is reached whei the driver has voluntarily
consumed alcohol to the extent that 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.
(App. A, 6) .
These two formulations--which differ only as “impaired to any
extent" differs from "incapable of employing"--the Court of Appeals
held to be sufficiently distinct to satisfy due process.
THE QUESTION PRESENTED IS SUBSTANTIAL
The New York Court of Appeals has held V.T.L. §1192(1) (3) to be
constitutional. That statute makes driving when one's ability to do
"intoxicated" condition a misdemeanor, but does not define the difference
between "intoxicated" and “impaired by alcohol." This Court should
decide whether the use of the terms "impaired by alcohol" and "intoxi-
cated" in juxtaposition to define distinct offenses without a defini-
tion of the distinction makes the statute unconstitutionally vague,
in violation of the Fourteenth Amendment, Due Process principles arti-
culated inthis Court's opinions in Colautti v. Franklin, U.S. ’
58 L.Ed.2d 596 (1979), and Connaily v. General Construction Co.,
269 U.S. 385 (1926).*
In New York, the terms "intoxicated" and "impaired by alcohol"
have long been held to have the same meaning. Prior to 1960, New York
1910 N.Y.
The courts defined an "intoxicated" condition
prohibited only driving while "in an intoxicated condition."
Laws c. 374, §290(3).
as one in which alcohol had affected one "to such an extent as to
impair his judgment or his ability to operate an automobile (emphasis
supplied)." People v. Weaver, 188 App. Div. 395, 400, 177 N.yY.sS. 71
(3d Dept. 1919).** One's judgment or ability was not considered
impaired, even in the slightest, until one was “incapable of giving
that care and attention to the operation of his automobile that a man
of prudence and reasonable intelligence would give (emphasis supplied) ."
Id. Under the pre-1960 statute, therefore, a driver knew he did not
violate the law, despite consumption of alcohol, if he was not incap-
able of driving reasonably and prudently.
In 1960, a second offense was added to the statutory scheme, the
traffic infraction of operating a vehicle while one's ability to do so
was “impaired by alcohol." 1960 N.Y. Laws c. 184, §1l.
The law, however,
*Other than New York, six states have experimented with two-level
drunken driving statutes. Of these, only three remain in effect. Colo.
Rev. Stat. §42-4-1202(1) (a) (b); Md. Transp. Code Ann. §21-902(a) (b);
Mich. Comp. Laws §257.625(a)(b). The other three states have eliminated
one of the two offenses. 1971 Me. Laws c. 547; 1977 N.J. Laws c. 29,
§1; 1972 Va. Acts c. 757. The New York legislature in 1971 defeated a
measure recommended by the Transportation Committee that would have
eliminated "impaired." 1971 N.Y. Legis. Annual 466. Two-step drunken-
driving statutes have been upheld against vagueness challenges in Bass v..
Commonwealth, 209 Va. 422, 164 S.E.2d 667 (1968); State v. Bryce,
(Me. 1968); People v. Lambert, 395 Mich. 296, x3 N.W.2da
People, 181 Colo. 194, 510 P.2d 311 (1973); and
App. 123, 395 A.2d 1224 (ct. Spec. App. 1979).
:
338 (1975);
Thompson v.
Brooks v. State, 4I Md.
**Drunken driving is only one area in which "intoxicated" and "impaired
by alcohol" are synonymous. See, e.g., People v. Bevilacqua, 12 Misc.2d
558, 568, 170 N.Y¥.S.2d 423, (Essex Co. Ct. 8) (public intoxication
charge requires proof of impairment of physical and mental faculties).
Significantly, when the legislature wanted to provide a parallel misde-
meanor to driving while intoxicated, it chose the term "impaired by the
use of a drug." 1966 N.Y. Laws c. 963; §1; V.T.L. §1192(4). The
standard of proof for the two offenses has been held to be the same.
People v. Van Tuyl, 79 Misc.2d 262, 268, 359 N.Y.S.2da 958 (App. Term,
2d and llth Jud. Dists. 1974).
ae
é
| Beales
did not define the two offenses or the difference between them, except
to provide different penalties.*
The juxtaposition of the two offenses makes the statute unconsti-
tutionally vague. It is not apparent whether, by adding "impaired,"
the legislature intended to outlaw acts which previously were legal or,
instead intended to maintain the same initial threshold of illegality.
A driver no longer knows whether evidence that he is affected by alcohol
but capable of normal driving will establish his innocence of either or
both charges. Because men of ordinary intelligence must guess as to
the meaning of the statute and differ as to its application, it is
unconstitutionally vague. See Connally v. General Construction Co.,
269 U.S. 385, 391 (1926).
The two-level law has tormented the courts of New York, especially
when chemical test results are unavailable. The elements of the two
People v. Grejszak, 100 Misc.2d
1045, 1046, 420 N.Y.S.2a 483 (Sup. Ct., Erie Co. 1979).
offenses have been held to be identical.
Some courts,
finding no way of distinguishing the two offenses, have refused to
charge the lesser. See, @.g-., People v. Graser, 90 Misc.2d 219, 224-25,
393 N.Y¥.S.2d 1009 (Town ct. of Amherst, Erie Co. 1977). Others have
refused to uphold a conviction of the greater offense, absent proof that
the defendant was very, very d ink. See, e.g., People v. Kapsuris,
89 Misc.2d 634, 635, 392 N.y.S.2a 785 (Erie Co. Ct. 1976).
Thus, the
two-level law has been applied in the arbitrary and erratic manner which
*In the instant case, where no chemical test results are available,
ao §1195 is of no relevance. That section provides, in substance
at:
(a) Evidence of .05 of 1% or less of alcohol in the
blood is prima facie evidence of neither impairment nor
intoxication.
(b) Evidence of more than .05 of 1% but not more than
-07 of 1% of alcohol content is relevant evidence in
determining impairment and is prima facie evidence that
the driver was not intoxicated.
(c) Evidence of more than .07 of 13% but less than .10
of 1% by weight of alcohol in the blood is prima facie
evidence of impairment and is prima facie evidence that
the driver was not intoxicated.
Even when test results are available, that section does not adequately
define the two offenses. The court confronted with "prima facie" evi-
dence has no way of discerning the nature or degree of evidence neces-
sary to rebut the presumption. Likewise, the court confronted with
“relevant” evidence does not know what additional evidence is necessary
to prove the driver's guilt.
due process abhors. See Colautti v. Franklin, U.S. , 58 L.Ed.2da
596, 606 (1979); Papachristou v. City of Jacksonville, 405 U.S. 156,
162 (1972).
To quote the remarks of the Criminal Court opinion approved by
the Appellate Term majority (App. B, 1):
V.T.L. §1192 subdivision 1 and 3, fail to meet
due process requirements of the Fourteenth Amendment
of the U.S. Constitution and Article one, Section six
of the New York Constitution. V.T.L. §1195 falls far
short of providing any useful guideline to determine
the distinction between impairment and intoxication.
When a chemical test is not done, or not done properly,
or just refused by the defendant, we are left with the
ancient Weaver definition. This proves to be no help
as the term impairment is used to define the term
intoxication. One undefined term is used to define
another undefined term, and the difference in degree
between the two terms is left unclear. The average
citizen is unable to determine when his next drink will
push him over the precipice from a violation of impair-
ment to a violation for a crime of intoxication. These
sections are vague because men of common intelligence
must necessarily guess at their meanings and differ as
to their applications. A person is not able, from the
face of the statute, to know in advance whether his
actions are criminal or not. The statute thus violates
the first essential of due process of law.
(App. C, 9).
The opinion of the Court of Appeals does not elucidate the distinc-
tion between the two offenses. That court stated that one is guilty
of the traffic infraction if one has "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" (App. A, 5).
The court has also stated that one is guilty of the misdemeanor if one
is “incapable of employing” the same abilities (App. A, 6). Yet there
remains no apparent distinction between the two standards. If one is
capable of doing something, how is one's ability to do it impaired?
All that one can glean from the opinion is that "intoxication" is a
more severe degree of “impairment.” One cannot determine what degree
of infirmity constitutes an impairment or when a driver passes from
that condition into intoxication. *
*¥The Court of Appeals has conceded that it has not delineated the
difference between the two offenses by referring to People v. Eboli,
34 N.Y.2d 281, 357 N.¥.S.2d 435 (1974), a case in which it held that
the criteria which distinguish felony coercion from misdemeanor coer-
cion need not be specified, so long as adequate guidelines are pro-
vided to the prosecutor. Id., 34 N.¥.2d at 287-88; See People v.
Discala, 45 N.Y¥.2d 38, 42-43, 407 N.Y.S.2d 660 (1978). That decision
is at Odds with State v. Pirkey, 203 Ore. 697, 705, 281 P.2d 698 (1955),
in which the Oregon Supreme Court held unconstitutional a statute which
did not define the criteria that distinguished felony and misdemeanor
charges of writing a check upon insufficient funds.
-9-
a ae
This Court found an analogous statute to be unconstitutionally
vague in Colautti v. Franklin, U.S. , 58 L.Ed.2d 596 (1979).
That case concerned the Pennsylvania Abortion Control Act, 35 Pa. Stat.
Ann. §6605(a) (Purdon), which required a higher standard of care in
performing abortions if the fetus "is viable or if there is sufficient
reason to believe that the fetus may be viable." The term "viable,"
standing alone, was adequately defined as “the capability of a fetus
to live outside the mother's womb albeit with artificial aid." 35 Pa.
Stat. Ann. §6602 (Purdon); See Roe v. Wade, 410 U.S. 113, 160 (1973).
Its juxtaposition with "may be viable," however, made both terms
unclear:
Since we must reject appellants' theory that "may
be viable" means "viable," a second serious ambiguity
appears in the statute. On the one hand, as appellees
urge and as the District Court found, see 401 F.Supp.,
at 572, it may be that "may be viable" carves out a
new time period during pregnancy when there is a remote
possibility of fetal survival outside the womb, but
the fetus has not yet attained the reasonable likeli-
hood of survival that physicians associate with via-
bility. On the other hand, although appellants do not
argue this, it may be that "may be viable" refers to
viability as physicians understand it, and "viable"
refers to some undetermined stage later in pregnancy.
We need not resolve this question. The crucial point
is that "viable" and "may be viable" apparently refer to
distinct conditions, and that one of these conditions
differs in some indeterminate way from the definition
of viability as set forth in Roe and in Planned Parent-
hood." :
For the same reason, the statute at issue here is unconstitutional.
Here, it is obvious that "intoxicated" and “impaired by alcohol" are
to have different meanings, but it is unclear whether "impaired" refers
to a condition in which driving was formerly permissible or whether
"intoxicated" refers to a more severely afflicted condition than it
formerly did. The two terms apparently refer to distinct conditions,
one of which differs in some indeterminate way from the definition’ of
"intoxicated" that previously prevailed in New York. Because V.T.L.
§1192 conditions potential criminal liability on confusing and ambiguous
criteria, it is unconstitutionally vague. See Colautti, supra,
58 L.Ed.2d at 608.
The decision of this Court in United States v. Batchelder,
U.S. , 60 L.Ed.2d 755 (1979) supports our position. That case
concerned "two independent gun control statutes, each fully enforceable
-10-
om its own terms... ." 60 L.Ed.2d at 762. Each “unambiguously
[specified] the activity proscribed and the penalties available on
conviction." 60 L.Ed.2d at 764. This Court held that, in such a
case, [s]o long as overlapping criminal provisions clearly define the
conduct prohibited and the punishment authorized, the notice require-
ments of the Due Process Clause are satisfied." 60 L.Ed.2d at 764.
Here, in contrast, the subdivisions are not independent, and the pro-
hibited conduct is not . .early defined, so the statute is unconstitu-
tional.
The Court of Appeals reached its erroneous conclusion through a
misreading of this Court's decisions in United States v. Harriss,
347 U.S. 612 (1954); United States v. Petrillo, 332 U.S. 1 (1947);
United States v. Wurzbach, 280 U.S. 396 (1930); and Nash v. United
States, 229 U.S. 373 (1913). Wurzbach concerned a statute that pro-
hibited government employees from soliciting or receiving funds from
other government employees for "any political purpose whatsoever."
Since Wurzbach held only that a Congressman's solicitation of funds
for a primary campaign clearly fell within the statute's intended
ambit, it has no relevance here.
Like the statute at issue here, the ones involved in Harriss,
Petrillo, and Nash dealt with questicns of degree, but unlike the
statute here those statutes adequately defined the line between pro-
hibited and permitted conduct; all that was unclear was whether the
jury in a specific case would find that the given facts constituted
a violation. In Nash, the line was drawn at an undue restraint of
trade; in Petrillo, at compelling the hiring of unnecessary employees;
in Harriss, at the solicitation of funds to be used principally to
influence the passage or defeat of legislation. The meanings of "undue,"
"unnecessary," and "principally" are clear, even though a given case
might pose a factual question to the jury. Here, in contrast, the
meanings of "intoxicated" and "impaired by alcohol," because of their
juxtaposition, are unclear.
Directly on point is this Court's decision in Connally v. General
Construction Co., 269 U.S. 385 (1926). In that case, a statute which
required employers to pay their employees the current rate of wages in
the locality was held unconstitutional for failing to specify whether
@li-<-
the lowest, highest or average wage was required. Id. at 393-94,
Because the dividing line. between lawful and unlawful activity was
left to conjecture, the statute was held unconstitutional.
It bears emphasis that, in Connally, an employer could have avoide
trouble by paying his employees more than anyone else, and could have
guaranteed trouble by paying them less than anyone else. Similarly,
»
in Colautti, supra, a physician could have avoided trouble by perform-
ing abortions only in early pregnancy. The statutes were nevertheless
held to be vague. Here, although the statute is clear enough in the
case of the driver who has had no alcohol and in the case where the
driver concedes that he is very, very drunk [see United States v.
Channel, 423 F. Supp. 1017, 1019, 1026 (D. Md. 1976)] it is ambiguous
in the vast majority of cases that fall in between.
We do not dispute that the Constitution does not require impossible
standards, Petri..o, supra, 332 U.S. at 7, nor that the doubtfulness
of a marginal case does not invalidate a statute, Harriss, supra,
347 U.S. at 618; Petrillo, supra, 332 U.S. at 7; Wurzbach, supra,
280 U.S. at 399; nor that a statute containing a clearly defined element
of degree as to which estimates may differ is not invalid, Nash, supra,
229 U.S. at 377. Here, however, unlike the cited cases, one must guess
as to where the line is drawn to begin with, and then guess again as
to whether a driver has crossed it. Although a statute that requires
only the latter guess may not be unconstitutional, a statute is which
requires one to guess as to the meaning of its terms. Because V.T.L.
§1192 is so indefinite that men of common intelligence must guess as
to its meaning and differ as to its application, it is unconstitution-
ally vague. Connally v. General Construction Co., supra, 269 U.S. at
391.
CONCLUSION
The question presented by this appeal is a substantial one the
resolution of which requires plenary consideration by this Court.
Respectfully submitted,
WILLIAM E. HELLERSTEIN
Counsel for Appellant
THOMAS H. BUSCH \
Of Counsel
February, 1980
=12=
APPENDIY A
OPINION OF
THE NEW YORK COURT OF APPFALS
OPINION OF THE COURT
+. Wacerenim, Ds tert eye S oh ead) 26 8
The question on this appeal is whether subdivision 1 ‘of
‘section 1192 of the Vehicle and Traffic Law, which prohibits
driving while the ability to operate a motor vehicle “is im-
paired by the consumption of alcohol”, and subdivision 3,
which prohibits driving “while * *. * in an intoxicated condi-
tion”, are unconstitutionally vague in a case where the driver
has refused to submit to any scientific test for determining the
amount of alcohol he has consumed. The trial court held that,
in the absence of a scientific test, the statutory concepts of
impairment and intoxication were so vague and indefinite as
to violate the defendant’s right to due process. The Appellate
Term affirmed with one dissent. The People have appealed.
On the evening of January 28, 1978 a police officer observed
the defendant driving in an erratic manner on Third Avenue
in Bronx County. The officer stopped the defendant after he
had driven through a steady red light. As the defendant left
his car the officer detected a strong odor of alcohol on his
breath. When he asked the defendant to produce his license
and registration the defendant threw them at him. The officer
then asked the defendant if he had been drinking and the
defendant said that he had a couple of drinks. At this point
the officer informed the defendant that he was placing him
under arrest for “intoxicated driving”. He subsequently asked
the defendant. if he would take a breathalyzer test but the
defendant refused. ~ ae
- The defendant was charged with a misdemeanor for operat-
ing a motor vehicle while under the influence of alcohol in
violation of section 1192 of the Vehicle and Traffic Law, based
solely on the officer’s observations at the time of arrest. In the
accusatory instrument the officer noted that he had first
observed the defer.dant driving in an erratic manner and that
the “defendant’s eyes were watery and bloodshot, his speech
was slurred and the defendant was unsteady on his feet, and
-his breath bore the odor of alcohol.” At a preliminary hearing
the officer also testified that he had shined his flashlight into
the defendant’s eyes, and observed that “the pupils did not
dilate”. It also appears that the defendant was given a co-
ordination test at the police station by another officer who was
not called at the hearing.
The defendant made a pretrial motion to dismiss on the
grounds that (a) the accusatory instrument was insufficient in
that it failed to inform him whether he was being charged
with driving while intoxicated or driving while impaired and
(b) that subdivisions 1 and 3 of section 1192 of the Vehicle and
Traffic Law were unconstitutionally vague. ‘
-: As noted, the courts below agreed with the defendant’s
second contention. They held that the statutory terms, im-
paired and intoxicated, were too vague.and indefinite to
satisfy due process requirements when applied to cases where
no chemical test results were available. Thus the accusatory
instrument was dismissed prior to trial. . :
[1] It is a fundamental requirement of due process that a
criminal statute must be stated in terms which are reasonably
ee ene
definite so that a person of ordinary intelligence will know
what the law prohibits or commands (Connally v General
Constr. Co., 269 US 385, 391; United States v Petrillo, 332 US
1, 6; People v Smith, 44 NY2d 613; see, generally, Note, The
Void-for-Vagueness Doctrine, 109 U of Penn L Rev 67). The
concept promotes fairness to the defendant in two respects.
First it insures that the defendant will receive adequate
warning of what the law requires so that he may act lawfully.
The underlying principle is that no man shall be held crimi-
nally responsible for conduct which he could not reasonably
understand to be proscribed” (United States v Harriss, 347 US
612, 617). Secondly, it serves to prevent arbitrary and discrim-
inatory enforcement by requiring “boundaries sufficiently dis-
tinct for police, Judges and juries to fairly administer the
ys! ( peered ing ‘ir ae supra, p 7; Papachristou v City
of Jacksonville, 156; Grayned v Ci
is isa ce yn City of Rockford, 408
But the Constitution only requires reasonable precision; it
does not impose “impossible standards” (United States v Pe-
trillo, supra, pp 7-8). Thus “if the general class of offenses to
which the statute_is directed is plainly within its terms, the
statute will not be struck down as vague, even though mar-
ginal cases could be put where doubt might rise” (United
States v Harriss, supra, p 618; United States v Petrillo, supra
p 7; United States v Wurzbach, 280 US 396, 399).
In this State the first statute to prohibit driving while “in
an intoxicated condition” was adopted in 1910 (L 1910, ch 374,
§ 290, subd 3; see, also, King and Tipperman, The Offense of
Driving While Intoxicated: the Development of Statutory and
Case Law in New York, 3 Hofstra L Rev 541, 544). Convictions
under that statute could be based solely on the defendant’s
conduct and demeanor at the time of arrest. It was not until
1941 that the results of scientific tests for alcohol content
‘were made admissible by statute (L 1941, ch 726, § 1). In 1960
a new offense, driving “while ability is impaired by the
consumption of alcohol”, was adopted as a lesse
intoxication (L 1960, ch 184, § 1). s sea’ wen
_ Originally, impairment could only be established by scien-
tific proof showing a specific blood alcohol content (see, e.g.,
People v Bronzino, 25 AD2d 685). This requirement was
eliminated, however, in 1970 (L 1970, ch 275; see, also, Gover-
nors Memorandum, NY Legis Ann, 1970, p 364). Now,
whether the defendant is charged with driving while intoxi-
cated or driving while impaired by alcohol, scientific evidence
of blood alcohol content, although admissible (Vehicle and
Traffic Law, § 1195, subd 1), is not essential. Since the defen-
dant’s consent is required for any blood alcohol analysis
(Vehicle and Traffic Law, § 1194, subd 2), the present statutory
scheme serves to prevent the defendant from defeating a
criminal prosecution for either offense by simply refusing to
The relevant: portion of the current statute (Vehicle and
Traffic Law, § 1192), applicable also at the time of the arrest
in this case, reads as follows:’*. era ws
“1 No person shall operate a motor vehicle while his ability
, to operate such motor vehicle is impaired by the consumption
ofalcohol .: |
“3 No person shall operate a motor vehicle while he is in an
intoxicated condition.” ;
Driving while the ability to operate a motor vehicle is
impaired by the consumption of alcohol is a traffic infraction
(Vehicle and Traffic Law, § 155). Driving while intoxicated is a
misdemeanor or, in the case of a second conviction within 10
years, a felony (Vehicle and Traffic Law, §1192, subd 5).
Evidence that a defendant had less than .10 of 1% of alcohol
in his blood is prima facie evidence that he was not intoxi-
cated (Vehicle and Traffic Law, § 1195, subd 2, pars (al, (b], [c);
if there is a higher percentage of alcohol, a defendant would
be guilty of a misdemeanor (Vehicle and Traffic Law, § 1192,
subds 2,5). —.
Concerning impairment, the statute provides that a reading
of more than .07 but less than .10 of 1% of alcohol in the
blood is prima’facie evidence that a defendant’s ability to
operate a vehicle was impaired (Vehicle and Traffic Law,
§ 1195, subd 2, par [c). A reading of .05 or less is prima facie
evidence that a defendant was not impaired or, of course,
‘ intoxicated (Vehicle and Traffic Law, § 1195, subd 2, par [a)).
- The lower courts felt that this case disclosed a gap in the
legislative scheme. They held that the Legislature had ne-
glected to define impairment or intoxication, except in rela-
tionship to the alcoholic content of the blood. Thus they
concluded that in cases where no test results are available
there are no definite standards to guide the defendant, the
police, or the courts in determining whether driving after
MUO th Ain bee she Re
consuming some alcohol would violate the statute and, if so, to
what degree. . ,
With respect to impairment the defendant urges that it is
not clear whether the statute prohibits driving when the
driver is extremely impaired, only moderately impaired, or
even impaired to a slight degree and whether an objective or a
subjective standard applies. On its’ face, however, the statute
does not speak of degrees of impairment; it simply prohibits
the driving of a motor vehicle when the driver’s “ability to
operate such vehicle is impaired” (Vehicle and Traffic Law,
§ 1192, subd 1). Thus driving a motor vehicle while there is
any alcoholic impairment of the driver’s “ability to operate
such vehicle” would constitute a violation.
That is not to say, of course, that every person who drinks
before driving violates the law. On the contrary the Legisla-
ture recognized that the average person can consume a cer-
tain amount of alcohol without impairing his ability to oper-
ate a motor vehicle as he should. Otherwise the Legislature
would not have provided that proof of .05 of 1% or less of
blood alcohol content is prima facie evidence that. the driver
was not impaired or intoxicated (Vehicle and Traffic Law,
§ 1195, subd 2, par [a]). Of course some persons may find their
driving faculties impaired by the least consumption of alcohol
and, therefore, would be guilty of driving while impaired
while others would not (Vehicle and Traffic Law, § 1195, subd
2, par [a]). And the Legislature also recognized that some
individuals may be able to consume greater amounts of alco-
hol without being impaired, as would the average driver
(Vehicle and Traffic Law, § 1195, subd 1, par [c]). Thus the
impairment statute, by simply providing prima facie stan-
dards, takes into account the “subjective” tolerance of individ-
uals in determining the ability to drive possessed by a defen-
dant at the time of arrest. But in determining whether that
ability is less than he should possess, the statute necessarily
contemplates the use of the objective standard expected of the
average driver. Obviously one cannot defend on the ground
that, even when he has consumed no alcohol, he generally
drives with less prudence and care than is expected of the
average driver.
[2] In sum the prohibition against driving while the ability
to do so is impaired by alcohol (Vehicle and Traffic Law,
§ 1192, subd 1) is not a vague and indefinite concept as the
defendant contends. It is evident from the statutory language
and scheme that the question in each case is whether, by
voluntarily consuming alcohol, this particular defendant 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. ;
- Driving while intoxicated is a more serious offense (Vehicle
and Traffic Law, § 1192, subd 5) and thus involves a greater
degree of impairment. The courts below held, however, that
the line between the two is vague and indefinite because the
Legislature failed to provide any verbal definition or standard
of comparison. This, it is said, leaves a defendant without any
warning as to-when he might cross the threshold from mere
impairment to intoxication and thus run the risk of a convic-
tion for a more serious offense. In addition, he claims that the
absence of guidelines gives law enforcement officers and the
courts an impermissible discretion to prosecute and convict for
the higher offense." _ ats hee
Although the Legislature did not include a definition of
intoxication in the statute, it does not follow that the term is
without a definite or ascertainable meaning. Intoxication is
not an unfamiliar concept. It is intelligible to the average
person (Richardson, Evidence, § 364, pp 332-333). It is familiar
to the law and has long been held to mean an incapacity to
perform various mental or physical acts which an average
person would be able to do. Of course intoxication is a variable
term in the sense that a person, despite the consumption of
alcohol, may be able to do certain things (for instance, physi-
cally operate a motor vehicle), while his ability to do some-
thing more demanding (such as operate a motor vehicle safely)
may be destroyed. But the standard for determining intoxica-
tion is constant; that is, whether the individual’s consumption
of alcohol has rendered him incapable of employing the physi-
cal or mental abilities needed to, for instance, form a specific .
intent (People v Koerber, 244 NY 147, 152; see, also, Perkins, -
Criminal Law, pp 793-794), understand the nature and effect
° We note that even if the offenses did overlap it is doubtful that the resulting
prosecutorial discretion would offend due process (People v Eboli, 34 NY2d 281). And
although constitutional notions of fairness require the notice to the defendant of what
is prohibited so that he may act lawfully, the standard is less demanding where
questions of degree are involved (see, e.g., Nash v United States, 229 US 373, 377;
United States v Wurzbach, 280 US 396, 399, supra) And it may be that fairness
would permit even less precise notice when the defendant is not called upon to choose
between a lawful act and an unlawful one, but between two unlawful acts of different
of a contract (Simpson, Contracts, §79, p 293) or testify
truthfully and accurately (Hartford v Palmer, 16 Johns 143).
[2, 3] A statute which employs terms having an accepted
meaning “long recognized in law and life” cannot be said to be
so vague and indefinite as to afford the defendant insufficient
notice of what is prohibited or inadequate guidelines for
adjudication (International Harvester Co. v Kentucky, 234 US
216; Nash v United States, 229 US 373, 377; People v Grogan,
260 NY 138; People v Mancuso, 255 NY 463, 470), even
though there may be “an element of degree in the definition
as to which estimates might differ” (Connally v General
Constr. Co., 269 US 385, 391, supra). And words and phrases
used in a statute should be given their ordinary meaning
when, as here, the Legislature has given no indication that a
different meaning was intended (see, e.g., McKinney’s Cons
Laws of NY, Statutes, Book 1, § 232). This is particularly apt
when it is’ claimed that the statute might otherwise lack
sufficiently definite standards or guidelines to satisfy the
requirements of due process (see, e.g., Screws v United States,
325 US 91).
[2] In sum, intoxication is a greater degree of impairment
which is reached when the driver has voluntarily consumed
alcohol to the extent that 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.
As noted, the concept of intoxication does not require expert
opinion. 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.
. Thus, even when no chemical test has been made of the
driver’s blood alcohol content, the statute provides reasonable
warning of. what is prohibited and sufficient standards for
adjudication. -! -:
We therefore conclude that subdivisions 1 and 3 of section
1192 of the Vehicle and Traffic Law are not unconstitutionally
vague or indefinite when applied to a case where an analysis
of the driver’s blood alcohol content is unavailable.
Accordingly, the order of the Appellate ‘Term should be
reversed, the accusatory instrument reinstated and the case
remitted to the Criminal Court for further proceedings.
Chief Judge Cooke and Judges JasEN, GABRIELLI, JONES,
FucHsBERG and MEYER concur.
A-F
APPENDIX B
MAJORITY AND DISSENTING OPINTONS
OF THF APPELLATE DIVISION, FIRST DEPAPTMFENT
; _ OPINION OF THE COURT
Per Curiam. ::. . i
Order of the Criminal Court of the City of New York, Bronx
County (Ficueroa, J.), dated October 31, 1978, is affirmed.
Section 1192 of the Vehicle and Traffic Law which prohibits
driving in either an “impaired” or an “intoxicated” condition
is unconstitutionally vague in violation of the right to due
process (US Const, 14th Amdt; NY Const, art I, § 6).
The due process clause requires that a criminal statute be
sufficiently definite to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden by the
statute (Colautti v Franklin, — US —, 47 USLW 4094, 4097).
Also, the statute must provide explicit standards for the
policemen, Judges and juries who apply it so that resolution of
individual cases is not on an ad hoc and subjective basis
(People v Smith, 44 NY2d 613, 618-619; Grayned v City of
- Rockford, 408 US 104, 108-109). The statute in question does
not define either “impaired” or “intoxicated.” This is espe-
cially critical in applying the subject statute since driving
whle impaired (Vehicle and Traffic Law, § 1192, subd 1) is a
violation and ‘driving while intoxicated (Vehicle and Traffic
Law, § 1192, subd 3) is a crime.
The Court below aptly noted that “[tJhese sections are vague
because men of common intelligence must necessarily guess at
their meanings and differ as to their applications. A person is
} not able, from the face of the statute, to know in advance
whether his actions are criminal or not.” To this we add the
observation that not only the citizenry are left to guess and
differ but the courts of the State have also rendered conflict-
ing and varying definitions as to the term “intoxication” as
used in the statute..One court has found a driver must be
“very, very drunk” in order:to be convicted of a misdemeanor
under subdivision 3 (People v Barrett, 89 Misc 2d 631, 634
[Town Ct of Tonawanda, Erie County]; see, also, People v
Kapsuris, 89 Misc 2d 634; 635 [Erie County Ct). In People v
Graser (90 Misc 2d 219, 224) the Town Court of Amherst, Erie
County, observed with commendable candor: “Can we say that
to be impaired means that the defendant is less drunk than if
he were intoxicated, and, that to be intoxicated means that he
is more drunk than if he were impaired?—We have so
juries. innumerable times; but have never felt satisfied nor
comfortable with that statement.” (Emphasis added.) Other
courts have held that proof of a substantial degree of impair-
ment is required, compared to the driver’s own normal judg-
ment and ability (People v Miller, 83 Misc 2d 118, 119 [Town
Ct of Webster, Monrve County]; People v Little, NYLJ, May
10, 1978, p 15, col 6 [Sup Ct, Westchester County). A court in
The Bronx held that “[tJhe difference between intoxication
and impairment is a matter of degree.” If the lose of physical
control of the vehicle, reasoned the court, is less than that
which would be experienced bya reasonably prudent driver,
the defendant would be guilty of driving while “impaired.” If
the loss of control were of a higher degree, the jury could
determiine that the defendant was guilty of “intoxication.”
(People v Bradford, 96 Misc 2d 298, 300 [Sup Ct, Bronx
County].) ; . ’
‘It is a well-established principle that “vagueness” chal-
lenges to statutes, which do not involve First Amendment
freedoms, must be examined in the light of the facts of the
case at hand (United States v National Dairy Corp., 372 US
29; United States v Mazurie, 419 US 544). - Pe
The information in the instant case charged defendant with
violating’ an unspecified subdivision of section 1192 of the
Vehicle and Traffic Law. It does not establish that under the
circumstances of defendant’s arrest, he was either obviously
drunk, or his ability to drive was merely impaired. Thus, a
defendant who was very, very drunk, or so charged would
clearly violate the statute and the language therein could not
be held to be constitutionally vague. Thus, in People v Farmer
(36 NY2d 386, 391) a driver charged with a misdemeanor who
had .21'of 1% by weight of alcohol in his blood was convicted
under subdivision 2, which requires only .10 of ‘1%. Judge
FucusserG, in a concurring opinion, referring to the legisla-
tive intent in enacting sections 1192 and 1196 of the Vehicle
and Traffic Law to reduce highway injuries and deaths pointed
out (p 392) that “[wJhile such legislative intent is laudable, it
may not impair the due process requirement for providing a
defendant with notice of an ounse charged. (In re Oliver, 333
US 257.” :
hs cc teekahths cn Piemin ed United States v Channel (423
F Supp 1017) where the defendant was also “highly intoxi-
cated,” there has been no difficulty in determining that there
* has been no denial of due process.’
These cases are inapposite to the case at bar, however. In
the case before this court, the defendant’s driving ability may
have been only slightly diminished, and‘no chemical ‘test
results were available. Under these facts, the statute provides
no ascertainable standards for a trial court to apply to defen-
dant’s acts and thus is constitutionally vague. ee the
order appealed from should be affirmed.
Huaues, J.P. (dissenting). I respectfully dissent and would
. vote to reverse the order appealed from and to reinstate the
information. “s
Defendant was arrested on ‘January 28, 1978 and charged
with resisting arrest (Penal Law, § 205.30) and operating a
motor vehicle while under the influence of alcohol (Vehicle
and Traffic Law, § 1192). At the preliminary hearing on Febru-
_ary 15, 1978, Police Officer Daniel Marrone testified that he
observed defendant go through a red light; and after stopping
him, smelled alcohol on his breath. Defendant refused’ to
submit to a breathalyzer test and/or a chemical test. At the
conclusion of the hearing, the charge of resisting arrest was
dropped. Thereafter, defendant moved to dismiss the remain-
ing charge under section 1192 of the Vehicle and Traffic Law
on the ground that the statute is unconstitutionally vague on
its face and violates due process under the Fourteenth Amend-
ment of the United States Constitution and section 6 of article
I of the New York State Constitution.
Although defendant’s attorney's affirmation in support of
that motion alleges that the accusatory part of the informa-
tion fails to adequately designate the offense charged, in an
amended answering affirmation, the People disclose that sub-
poenaed police department records show that defendant stated
the charge against him to be subdivision 3 of section 1192 of
the Vehicle and Traffic Law. This specific charge is also
contained in a judicial subpoena issued by the criminal court.
Defendant’s argument in his motion papers was that the
charge of violation of section 1192 of the Vehicle and Traffic
Law in the accusatory instrument, based on the arresting
police officer’s deposition, failed to inform him sufficiently to
defend the charge. This argument was based in part upon the
alleged failure to indicate the subdivision of the statute under
which defendant was being charged.
‘The arresting officer’s affidavit alleges “that at the afore-
mentioned date, time and location the defendant did operate a
motor vehicle while under the influence of alcohol in that
defendant was observed by the deponent driving his vehicle in
an irratic [sic] and reckless manner. Deponent further states,
that the defendant’s eyes were watery and bloodshot, his
speech was slurred and the defendant was unsteady on his
feet, and his breath bore the odor of alcohol.”
In its decision dated October 31, 1978 granting the motion
dismissing the information, the court (Ficugroa, J.) found
that subdivisions 1 and 3 of section 1192 of the Vehicle and
Traffic Law fail to meet due process requirements of the
Fourteenth Amendment of the United States Constitution and
section 6 of article I of the New York Constitution, by failing
to provide any useful guideline to distinguish between impair-
ment (subd 1) and intoxication (subd 3), so that “[tJhe average
citizen is unable to determine when his next drink will push
him over the precipice from a violation for impairment to a
violation for a crime of intoxication.” The ambiguity or vague-
ness of the statute makes it necessary, in the opinion of the
court below, for men of common intelligence to guess at their
meanings. “A person is not able, from the face of the statute,
to know in advance whether his actions are criminal or not.
ee ne eer ee
w.
A conviction for impairment under subdivision 1 of section
1192 is an infraction whereas a subdivision 3 of section | 1192
either subdivision 2 or 3 within 10 years of a previous viola-
tion of either of these subdivisions constitutes a felony.
The court below applied the guideline enunciated by the
United States Supreme Court in Connally v General Constr.
Co. (269 US 385, 391) “[t}hat the terms of a penal statu
* * * must be sufficiently explicit to inform ho
subject to it what conduct on their part will render them
B-4
| fs
liable to its penalties * * * and a statute which either forbids
or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning
and differ as to its application, violates the first essential of
due process of Jaw.” It found that section 1192 of the Vehicle
and Traffic Law does not clearly indicate what it is. one has
the duty to avoid and is neither informative on its face nor so
clear and positive as to give unequivocal warning to citizens of
the rule to be obeyed, citing People v:Firth:(3 NY2d 472);
People v Vetri (309 NY 401); People v Caswell-Massey Co: (6
NY2d 497); People v Diaz (4 NY2d 469). The court found.the
most important criterion-of statutory constitutionality to be
whether a person. is able to know in advance whether his
actions are criminal or not (Tozer v. United States, 52 F 917;
and People v Bevilacqua, 12 Misc 2d 558)... ..-.. |. -..
The pertinent sections of the statute defendant claims to be
unconstitutionally vague are as follows: a
“1. No person shall operate a motor vehicle while his ability
to operate such motwr vehicle is impaired by the consumption
of aloohol.” . 3° FeArtt eo oe tame, ° ae
~ “8. No person shall operate a motor vehicle while he is in
an intoxicated condition” = | Be gee:
Section 1192 of the Vehicle and Traffic Law as originally
enacted contained only a prohibition against driving while
intoxicated. In 1960, a new subdivision prohibiting driving
while one’s ability was impaired by alcohol was added. It
provided, however, that no conviction could be had on a not
guilty plea unless the defendant had submitted to a chemical
test and the results showed .10 of 1% or more of alcohol in his
blood. Impairment, under the 1960 statute, was ascertainable
under the measurement standard -included in subdivision 1.
With the re-enactment of the statute in 1970, reference to the
requirement of a chemical test for proof of. impairment under
subdivision 1 was eliminated. Under subdivision 2 of the new
section 1192 of the Vehicle’ and Traffic: Law, a person is
prohibited from opsrating a motor vehicle while he has a .10
of 1% or more of aicohol ‘in- his blood as determined by a
chemical. test. org w ’ ae were ~ . + oe ‘ *. .
« The-statu change of standards of proof for subdivision
made it odetle to prove impairment under subdivision 1 by
observational testimony alone. This change, however, the
court below said, fails to give defendant adequate notice,
beforehand, of the line of demarcation between impairment
te eaten
and intoxication and without a definitive test, the meanings of
the terms, impairment and intoxication, make it possible for
one person to be convicted of an infraction for impairment,
and another of a misdemeanor for intoxication; for the same
act. Nor did the court find the enactment of section 1195 of
the Vehicle and Traffic Law with the new: section
1192, setting forth standards of alcohol-blood levels as prima
facie evidence of impairment or intoxication, an adequate
substitute for the provisions under the former statute. The
court notes that section 1195 has no application where for any
one of several reasons a chemical test has not been made. . ;
In People v Farmer (36 NY2d 386) the constitutionality of
section 1196 of the Vehicle and Traffic Law was upheld in a
decision which is interpreted as establishing impairment un-
der subdivision 1 of section 1192 as a lesser included offense of
intoxication under subdivision 3.
In its decision, the Court of Appeals found that subdivisions
1, 2 and 3 proscribe separable offenses based on the degree of
impairment, but they closely overlap and are species of the
generic offense of “Operating a motor vehicle while under the
influence of alcohol”, so that a simplified traffic information
charging a violation of subdivision 3 of section 1192 gives
ample notice to a defendant, that pursuant to section 1196, he
faces the posibility of a conviction under subdivisions 1 or 2 of
section 1192.
“The distinctions involved are no greater, and, indeed, are
- less than those involved in the charging and conviction for
lesser or included offenses in the criminal law” (pp 390-391). _
The challenge to subdivisions 1 and 3 of section 1192 in the
case at bar is the failure to define “impaired” and “intoxi-
cated” so as to establish defendant’s guilt or innocence in the
absence of chemical text evidence. etn cs i ee
‘-“A strong presumption of validity attaches to a statute, and
the burden of proving invalidity is upon those who challenge
the statute to prove such invalidity beyond a reasonable doubt
(People v Scott, 26 NY2d 286; Matter of Van Berkel v Power, ©
16 NY2d 37). A criminal statute need only describe the
proscribed conduct with a reasonable degree of certainty, such
that the statute convey to one of ordinary experience and
understanding of the acts prohibited (Boyce Motor Lines v
United States, 342 US 337).” (People v Reid, 95 Misc 2d 822,
823-824.)
In cases where the evidence disclosed beyond a reasonable
doubt that the defendant was “highly intoxicated” (United
States v Channel, 423 F Supp 1017, 1018) the courts had little
difficulty in determining that there was no denial of due
process, even where it found that “the standard ‘intoxicated’
in the Maryland statute pertaining to driving while intoxi-
cated, is seemingly capable of more precise definition.”
“Tt is well established that vagueness challenges to to stat-
utes which do not involve First Amendment freedoms must be
examined in the light of facts of the case at hand. United
States v National Dairy Products Corp.,:.372 U.S. 29; (1963).”
(United States v Mazurie, 419 US 544, 550.) ies vet ne
“* Whether the charges against defendant support a conviction
for driving while’ intoxicated under subdivision 3 of section |
1192 in the absence of chemical test evidence, the arresting
Officer’s description of defendant driving his. vehicle in an
erratic and reckless manner, and his observation that defen-
dant’s eyes were watery and bloodshot, his speech slurred and
that he was unsteady on his feet, with the odor of alcohol on
his breath, informs defendant sufficiently of the factual basis
for the charge, and of the possibility of conviction for impair-
' ment under subdivision 1 of section 1192.
The terms impairment and intoxication are not terms whose
meanings are “so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its
application”, in violation of the essentials of due process
(Connally v General Constr. Co., 269 US 385, 391). The differ-
ence between subdivisions 1 and 3 is obviously a matter of
degree, so that as here, in the absence of chemical test
evidence, it is reasonably understood that evidence of the
defendant’s physical condition and control of his vehicle will
be introduced to establish the charge against him, and that a
conviction can only be had where the proof is established
a reasonable doubt. Proof of conduct consistent with
intoxication is “the most telltale, objective item of proof to be
anticipated at trial of the subdivision 3 of section 1192
charge.” (People v Farmer, 36 NY2d 386, 394, supra.)
Lastly, defendant’s contention that the charge of violation of
, Section 1192 in the accusatory instrument failed to indicate
the subdivision defendant was being charged with and there-
fore failed to inform him sufficiently to defend the charge also
fails upon an analysis of People v Farmer (supra). As noted
therein (p 390) “a simplified traffic information charging a
violation of subdivision 3 of section 1192 gives notice of the
generic offense, and, perforce, sufficient notice of the possibil-
ity of conviction under the subdivisions 1 or 2”.
The issue is not whether the defendant knew that “he last
drink might render him “impaired” or “intoxicated”. It is
enough for him to know that if he drinks and drives that he
runs the risk of violating the Penal Law with respect to safe
driving. A felon who steals a watch may not know whether its
value may convert him into one who commited petty or grand
larceny. The statute involved in this case may be turgid, but it
is clear enough to escape its being. unconstitutional.
As a lesser included offense of the crime charged, there is
no constitutional barrier to conviction for impairment, where
the uncharged violation. (People v Farmer, supra; People v
Griffin, 7 NY2d 511; Paterno v Lyons, 334 US 314, 319-321.)
Concur: Riccopono and Ascu, JJ.; Hucxss, J. P., dissenting.
APPENDIX C
OPINION OF
THE CRIMINAL COURT
BRONX COUNTY
CRIMINAL COURT OF THE CITY OF NEW vorr
COUNTY OF BRONX
THE PEOPLE OF THE STATS OF NEW YORK,
~against- Docket NO. X802969
HECTOR CRUZ,
~
For the People:
MARIO MEROLA, ESQ.
Bronx Olatzict Attorneys Office
Srceax, Jew York
For the Defendant:
ANCRIBALD MURRAY, 280.
The Legal Aid Society
161 Ease l6lst Street
Becoas, New York 10451
By: Alicia Kaplow
iIVQITO FIGUZROA, F.:
the cafendant, Nector Crus, wus ascestet on Januacy 2%,
1978, .22 charged with P.L. Section 2u4.30, teugisting acsess, uc
V.r.Le Saction 1192, Operating a motor vehicle while under <he
ae of aicohol. ss
On Pebruary By: 1978, a preliminary hearing was hela.
At the hearing the complainant, Police Officer Daniel Marrcne
tastified as follows: He observed the defendant go throush a
red light; that on stopping the defendant the officer noticed
that Mr. Cruz's breath bore a strong odor of alcohol. The
satedtuns also, refused to take a breathalyzer test when asked :
to ¢o so by the officer. At the conclusica of the hearing, the
charge of seutahbie arrest was dismissed and this mattor was
adjourned for trial. p
The present matter in front of this court, is a motion to
dismiss the chanene of dziving while intoxicated. Defense counsei
bases its azgument on the ground that Vehicle and Traffic law
section 1192 is unconstitutionally vague on its face and thus
violates ¢ua process uncer the Fourteenth —— of tho J.S.
Constitution and Article one, Section six of the New York State
Constitution.
sols
- *: Mush has been written on the tests or guidelines to be
Used’ to determine whether or not a statute passes the constitutiona
mandate of due process. The United States Supreme Court in
Connally v. General Const-uctéon Co., 269 U.S. 385, 46 O.s. L265
(1926) held that the following factors should be used:
“That che terms of a penal statute creating a
new offense nust be Sutficieatly exslicit to
infor those who are subject to it what conduct
om their part will render then liahle to its
Penalties is a well-recognized recuiresent,
Consonant alike with ordinary motious of fair
play and the settled rules of law: and a
statate which either forbids or requires the
doing of an act in terms so vacue that mean of
gommon intellicance nus: secassarily auacs a=
ws Seaning enc ciltisr as co i=3 aoolication
Viel
w
aces the firsc essenciil of due nrocess of
asis supplie — “td
This “first essential of dca process” {fs reiterated in
our ova N.Y. State Constitution in Article © Suction 6 statlag
“Tm any trial, in any. court vhatuvec, the parcy accused
+++-Shall be informed of the nature and couse of the accusation.”
The pertinent subsections of V.T.5. 1192 provide as followd:
1. ceataae ns nae operate &@ motor vehicle while
his operate such cotor vehicls is
“impaired” by the consumption of alcohol.
shall
3. No person shall cperate a rotor vehicle while
he is in an “intoxicated” condition (emphasis
supplied). Sy,
Subsection one is classified as a violation(v.?T.1.
section 155) while subsections two and three are classified as
niscaueanors. (Further, a conviction of either subsection two or
three within eet years of a subsequent viclation of either of
thes« cubsections constitutes a felony).
In exaniaing V.t.L. 2192 then it ts this court's tasi: to
Catermine whether or not the statute clearly indicates what it iz
that a man has the duty to avoid (J.S. v. Rrever, (139 U.S. 278)
(1891)). Ze sust be informative “on its face" and must be “so
clear and positive as to give unequivocal warning to citizens of
the rule to be cheyed” (Peoole v. Firth, 3 N.¥.2d¢ 472, 474 (1957),
Pesole v. Vet=i, 309 5.¥. 401 (1955), See also Peonlé v. Casvell~
Massey Co., 6 N.¥.2d 497 (1959), and Peoole v. Diaz, 4 %.¥.24
469 (1958)}). The phrases in the statute cust have a specific
meaning, or a well-settled common-law meaning; or the text of the
Statute itself must set forth the standards to be applied
(Connally VV. General Construction Co., (supra), Peovle v. Grocan,
260 N.Y. 138 (1932)}). VPinally, and zest !=sortant, a person
should be able to kexiow “in advance whether his actions are criminal
or not (See Tozer v. United States, $2 F. 917 and Peoole v.
Bevilaccua, 12 Misc.2d $58 (County Court. Eusex County) (1958)).
east in this light, the princizal question to be resolved
is whether the statutes on its face, infor=s a citizen of the
difveruaces between driving while “impaired under subdivist
1 andaciving while “intoxicated” uncer subdivision 3. Does the
statuta, ia tin face, sive adequats notice az to the definiticn
anc distincticns betveen the two sections? UOetfense counsel
clains that the alleged infirmity in the statute lies ian the
failure by the legislature to define and set forth the el-cents
to distinguish betveen ‘impairment™ and “intoxication”, ws;scisl};
in the instance where a Sreathaly-er or chemical test result is
not available as ‘evidence to be used against the defendant.
As a starting point, I note the following comment by
Justicu Bestry in Peovle v. Grasez, 393 ¥.¥.S. 1009 (Amhers*
Tam Court, Erie County) (1977):
"Pifty-eicght years ago the legislature did not
by statute ¢efine intoxication and fifty-_ - .
eight years later it has still not cone so? :
(See also Peovle v. Little,. (Westchester County)N.¥.L.J. May 19,
1978). As a matter of fuct, the oft-cited anc ancient case of
Pecole v. Neaver, 188 A.D. 395, 177 N.¥.S. 71, (1919) provices
ts with the only attempt at a definition of intoxication. Jucse
Cochrane in the Third Department defined intoxication from licuc~
‘peerenaoes by a chamical test. ( A conviction under subdivision 2
to mean “such a condition as impairs to some wxtent, however
slight it may be, the ability of a person to sperata an automobile |”
(emphasis supplied). Simply stated, under this Weaver definition,
if a driver's ability to operate an automobile is inpaired by
liquor, he is intoxicated (People v. Graser, (supra)).
Originally, the only offense that was listed under V.7.L.
1192 was the prohibition against driving while intoxicated.
Prosecutors complained, however, that juries were reluctant to
convict under this secticn. In response to this, the legislature
in 1960, added a new subdivision prohibiting a person from
dsiviag while bis ability was “impaired” by alcchol. This new
offense was only listed as a traffic infraction, in the hopes
of easing the presecutica’ burden in such: cases. Nowever, the
lagislature specified that there could be no conviction for
impairment unless tha defendant had submitted himsel£ to a cherica!
test acd the results shcwed a .10 of 18 or more of alcohol 1 his
blecd. ‘therefore, the chemical test was a necessity in any crial
cm this charse and provided the trier of fact with some serslanc:
ef an ascertainable standard to be used to measure "imgairmenc.*
In 1970, the legislature repealed V.T.L. 1192 sud witianaind
it with an entire new section. The prohibition against de=iving
while intoxicated remained under subdivision 3. Hewever, the
reference to the requirement of a chemical test for proof of immai:
ment uncer subdivision 1 was eliminatec. A new subdivision 2
was created which prohibited a person from operating a motor
vehicle while he had .15 of 1% or more of alcohol in the blood as
constituted a miscemeanor). These changes scemed to indicata the
legislature's intent to provide that “impairment” under subdivision
1 could now be proved by cbhservational testimony alone, where
previously, a chemical test was requitec.
By changing the standards of proof, however the defendan=
is not given adequate notice, teforehand, as to when he stcps
over the line of demarcation from impaizment to intoxication.
The trier of fact must determine what the “line” is, by examining
the subjective state of mind of the defendant at the time of the
arrest. The neaniags of the terns remain unclear because the tries
of the facts may convict one person for impair=ent, and another
person for intoxication, for the same act. a k
The legislature also created V.T.L. 1195 and 1196 in 1970.
Section 1195 set forth the evidentiary effect of chemical test —
evidence for violations of section 1192 (assuming 3f course that
a test was properly administered purstant to V.7.L. 1194).
In its present forn V.T.5. 1195 provides in substance
,
that: . . . -
a) Evidence of .05 of 13 or less of alcohol in the dSloode
is prima facie evidence of neither i=pairment nor
intoxication.
b) Evidence of more than .95 of 13 hut no= more than
.07 of 18 of alcohol content is relevant evidence ia
determining impairment and is prima facie evicence
that such person was not intoxicated.
ce) Evidence that there was more than .07 of 1% Sut
less than .10 of 13 by weight of alcohol in the Slood
ts prima facie evidence of impairment and is prima
facie evidence that the person ~as not intoxicatec.
It fs plain to see, that V.T.L. 1195 is cnly appiicsdle if
a chenical tast is properly adsinistered. Even then, chemical
test evidence is only prima facie evidence in one iastancs, ¢9
wit, a blcod-alcohol content of nore then .07 of 1t Sut less Sin
.10 of lt is prima facie evidence of izmpairment. Other standards
of alcohol-blood levels are only “selevant evidence” to determine
which the legislature has enacted in the hopes of providing some
Standards to differentiate betwaen "“impairrant” and “intoxication”
no one can be suru to any degree of cartainty when a driver has
definitional hole in replacing the old statute in 1970 with the
present statute.
This problex is further compounded wher there is an absence
of a chemical test, as i§ the case here. This situation on occur
in numerous ways i.e. a failure to give the test, a failure to
acninister the test properly as provided in V.T.L. 1194, a refusal
by the defendant to take the test, etc., (This court also notes
recent reports of new drug discoveries which can effectively break
up alcohol in the blood stream and thus will render any chemiczl
test or breathalyzer test ineffective in the future). Without
a chemical test, V.T.L. 1195 becomes useless and the problem of
ei fferentiating between “impairment” and “intoxication” reaches
its zenith for the trier of fact. the only guideline we have left
is the Weaver definition of intoxication,which is no guideline at
impairment or intoxication. ‘hus despite these quantitive stancar7s
passud the stage of being impaired to the stage of being intoxicate.
It is possible for this statute to charge one person with being
intoxicated while driving, (constituting a ecrimu), and another i
pacuon with being impaired while @rivine (constituting an infr..c-
for en identical act. (People v. taPlante, @l wise.2e 34 (Suscice}
Court of Tonawanda) (1975)). The legislature thus left a gacing
all.
Numerous courts have anguished over this question when
faced with an absence of a chemical test. In People v Jones
ae
77 Hisc.2d 33 (Town Court of Tonawanda) (1974) the court expressed
the opinion of many judges on this issue:
“There does not appear to be any standard in 1
York, by which I can advise a , or myself of the
distinction between driving while one’s ability
7. impaired by the use of alcohol and driving while
toxicated....In many cases it will be most
difficult to detect the difference between driving
whit, impaired and driving while intoxicated".
(See People v. St. Ours, $4 A.D.2d 1080, 3188 “.Y.S.22 732 (4th
Cept.) (1976), Peoole v. Kapsuris, 89 Misc.2d 634, 392 N.Y¥.S.2¢e
785 (1977), People v. Barrett, 89 Misc.2a 631, 393 N.Y¥.S.2¢a 225
(1976), People v. Weber, 82 Misc.2d $93, 372 %.¥.S.24 361 (1975)).
The Jones court also cited the case of Follev v. State, (25 Ala.
App. 260) where the court, in describing the difference between
being “under the influence of intoxicating liquors* and being
“intoxicated” noted:
“The difference is that ot Tweedle Dew and Tweedle
Cun....There are perhaps es many staces of intcxicaticn
as there are varieties of tieinz Pickles... and the
party affected rarely knows when he passes fron one
stage to another.” Onna iv _v. General sSeuct-on Co. m
violated. (Connally v. General Construction Co. (supra) and
Peosle v. Firth (supra)). (Peovle v. Parner, (36 !.Y.24 396)
(1975) (which was also used by the Graser Court to find the
The Jones court addressed itself to the same issue a year
later in People v. LaPlante, (supra) . The court here, decided tha‘
V.T.L. 1192 subdivision 3 was unconstitutional but (as ‘it did in
the Jones case) found the defendant guilty of ¢csiving while
——
Statute constitutional) was found to be not relevant to the issue
of constituticanal vagueness of the statute since the Court of
Appeals only dealt with the constitutionality of V.T.L. 1196 and
not V.T.L. 1192).
impaired under subdivision 1. The court had spoken to numerous ‘
attorneys, judges, legislators, etc. about this statute during
the interim and was more convinced that ever that it was impossidlg. ; ;
In the case of Peovle v. Little, (Supreme Court, Westchester
to distinguish between subdivision 1 and subdivision 3. It eubint Os. ai gg RN RE
bald that the boundary betyeen an act which was merely a wk laliainlaia deieaa act there
violation and an act which was a crime, was unconstitutionally asia eli Win aie sie Enea ea impairment but
vague. etveen the ewe
This view, however, was not sharedc by all members of the Ciniea kona. ce
judiciary. Judge Porsyth in the case of Peovle v. “Miller, (#3 ea alts -
Therefore, the court convicted the def
Mise¢.2d 118) (Town Court of Webster, Monrce County) (1975) rejected ea lade efencant under subdivision rt
t). However, the court failed to d aire
the arguments in both LaPlante and Jones. We determined that a ‘ : agi : xe
meant and thus begged the question rather than providing any
distinction could be made betveen the terms “impairment” anc
clarification on this point.
| “intoxication” merely by looking at their ordinary meanings in 2
dictionary.
The court held that a person reachec the state of
This court also notes the recently reported case of Peovle 7.
Bracford (Supreme Court, Bronx County) “.¥.L.7. Oct. 19, 1978, ¥
pg. ll col. 2. The Court there, found that section i192 was noc
unceonstituticnally vague. [It held that impairment and intoxicatio;
were Cefined qualitatively in the statute. It stated that if a
intoxication when his judgment and ability to operate a motor
vehicle bacame adversely affected to a “substantial ¢egree.”
The court held that a person reached the state of impairment when |; ii ll el Ns aa a ce aa aa
he had consumed enovlh alcohol to lessen or impair his physical sibs ds da Uk ad mada co ae cote e eM
or montal control of a vehicle to a “significant degree”. RR REI 2 A ON ner ne ae iiers mo ,
It.is ny opinion, however that these definitions do not clarity AMIR SH eee se posits ed a Y Prucent
the distinction betveen impairment and intoxication, at all. tas al aah a wsttsSin ea > e impaired
the court in Peoole v. Graser, (supra) also upheld the 1" of a higher degree
than this, the jury could determine that the defendant vas
constitutionality of both subdivisions holding that impairment ant iil shail Meleiichieltiad meatal cnina é
intoxication, creactud no problems, since V.T.L. 1195 provisec i . or the reasons
quantitative standarés as to the degree of difference between pela Se ie cer aN that this dufinition
the two terms. However, even this court recognized that without f : en impairment and intoxicafic
to saet cue process requirements.
a chemical test, the difference between ‘mpaizment and intoxication
After tracing through the legislative history and all
would become vague since V.T.L. 1195 would not lonces anolv.
c-9
relevant cases, this court is convinced that V.7.L. 1192 sub=
division 1 and 3, fail to ment due process requirements of the
Pourteenth Amencment of the U.S. Constitution and Article one,
Section six of tha New York Constitution. V.T.L. 1LI9S falls far
short of providing any useful guideline to Catermine the distinctidn
between impairment and intoxication. . hen a chemical test is not
done, or not done properly, or just refused by the defendant,
we ace left with the ancicnt Weaver definition. This proves to
be no help as the term impairment is used to define the term
intoxication. One undefined term is used to define another
uncefined term, and the difference i decree between the two
terms is left unclear. ‘The averase citizen is unable to éetarnine
when his next erink will push him over the precipice from a violation
for Lapairment to a violation for a crime of intoxication. These
sections ase vague because men of common intelligence nust
necessarily guess at their meanings and differ as to theiy applica-
tions. A person is not able, from the facn of the statute,
to know in advance whether his actions are criminal or not. ‘The
statute thus violates the first essential of due precess of law.
Pinally, the prosecution has questioned whether it is the
euty of this court to make. findinss of constitutionality, or
whethe= these matters should be best left to an appellate court
(See Smith v. Schandel, $1 Misc.2d 628 (1959). ‘This court
secognizes that a presumption exists, that a statute duly enacted
by the legislature is constitutional (tcKkinney's Consolidated
Laws of N.¥., Book 2, Constitution secticn 41) (See Peonle +.
Pugnotta, 25 N.¥.2¢ 333 (1969). However, this court feels thet it
has the obligation to rule on the constitutionality of statutes,
especially where life and liberty are iavolved and whe the allege,
infirmity of the statute is facially apparent. (See Peoole v.
wollesste, §7 Misc.2¢ 236 (Sronx Co.) (1974), Peovle v. Tabh, 20
ttise.2¢ 431 (lew York Co.) (1975) . This court does not merely
Serve as a resting stop cn the roac to the various appellate
courts. I agree with the followine statement:
“It is just as auch the duty of the court of first
instance to declare invalid ane prevent clear viclations of the
constitution by legislative enactment as it is the like duty of
the court of last resort upon appeal, and this duty should not be
evaded by the trial Suiee, by casting responsibility upon appella
tribunals” (Zeople ex. Fel- Woean v. Rafferty, 77 Mise. 252 (1912)
The infornation quaines: the defendant, Tector Cruz, is
hereby disrissed.
DATID: October 31, 1978 -.
APPENDIX D
ie pg. ... —_ REMTISTTTOR OF
— rae TRE. MEE YORE. = -
COURT OF APPEALS
Remittitur |
Court of Appeals
State of Pew Bark
The Hon. Lawrence H. Couke, Chief Judge, Presiding
App T No. 465
The People &c.,
Appellant,
vs.
Hector Cruz,
Respondent.
The appellant(a) in the above entitled appeal appeared by Mario Merola, District
Attorney, Bronx County;
the respondent(x) appeared by William E. Hellerstein, The Legal Aid Society.
The Court, after due deliberation, orders and adjudges that the order is reversed,
the accusatory instrument reinstated and the case remitted to the
Criminal Court of the City of New York, Bronx County, for further pro-
ceedings. Opinion by Wachtler, J. All concur. oa
The Court further orders that the papers required
quired to be filed and this record
ceedings in this Court be remitted to the Criminal Court of the City of New oll
Bronx County, ; :
there to be proceeded upon according to law.
I certify that the preceding contains a correct record of the proceedings in this
the Court of Appeals and that the papers required to be filed are oniihed: ings in this appeal in
\ ;
wight Jaren —
/ ‘ | Joseph W. Bellacosa, Clerk of the Court
Court of Appeals, Clerk's Office, Albany, rns. righ 19.29_.
—_— ey some cate ee wae eae
—— © Ot + ee ae ete ose + eae eee eee ee beeen“ en esate le —
APPENDIX F
NOTICE OF APPEAL TO THE
SUPREME COURT OF THE
UNITED STATES °
CRIMINAL COURT OF THE CITY OF NEW YORK
BRONX COUNTY
—-——-— e- e S as SO 228 22222222 eee eeoeeoee2X
HECTOR CRUZ, : Docket No. 802969
County Clerk's
Appellant. : No. 48210/79
-against- : NOTICE OF APPEAL
TO THE SUPREME COURT
NEW YORK. : OF THE UNITES STATES
ee ee ae ae ae ee ee ee ee ee ee —— -—— xX
SIRS:
PLEASE TAKE NOTICE, that HECTOR CRUZ, the appellant
above-named, hereby appeals to the Supreme Court of the
United States from an order of the Court of Appeals of the
State of New York entered on November 20, 1979, which
reinstated the accusatory instrument charging appellant
with violating §1192 of the Vehicle and Traffic Law and
remitted the case to the Criminal Court of the City of
New York, Bronx County, for further proceedings.
This appeal is taken pursuant to 28 U.S.C. §1257(2).
Dated: New York, New York
January 28, 1980
FILED
Yours, etc.,
THOMAS H. BUSCE
WILLIAM E. HELLERSTEIN
Attorneys for Appellant
JAN 2 9 1980 15 Park Row - 18th Floor
CRIMINAL Court New York, New York 10038
NEW YORK COUNTY
APPEAL BUREAU
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