section 1192 prosecution in New York

1997In view of the foregoing, the court below erroneously held that the suspension of defendants’ drivers’ licenses pursuant to Vehicle and Traffic Law § 1193 (2) (e) (7), barred the prosecution of the Vehicle and Traffic Law § 1192 (2) violations pending against defendants (see also, Mat ter of Smith v Essex, 224 AD2d 89 ; People v Roach, 226 AD2d 55 ).

1997In view of the foregoing, the court below erroneously held that the suspension of defendant’s driver’s license pursuant to Vehicle and Traffic Law § 1193 (2) (e) (7) barred the prosecution of the Vehicle and Traffic Law § 1192 (2) violation pending against defendant (see also, Matter of Smith v Essex, 224 AD2d 89 ; People v Roach, 226 AD2d 55 ).

1997In view of the foregoing, the court below erroneously held that the suspension of defendant’s driver’s license pursuant to Vehicle and Traffic Law § 1193 (2) (e) (7) barred the prosecution of the Vehicle and Traffic Law § 1192 (2) violation pending against defendant (see also, Matter of Smith v Essex, 224 AD2d 89 ; People v Roach, 226 AD2d 55 ).

1997In view of the foregoing, the court below erroneously held that the suspension of defendants’ drivers’ licenses pursuant to Vehicle and Traffic Law § 1193 (2) (e) (7), barred the prosecution of the Vehicle and Traffic Law § 1192 (2) violations pending against defendants (see also, Mat ter of Smith v Essex, 224 AD2d 89 ; People v Roach, 226 AD2d 55 ).

2026More recently, in Ambrosio , supra, the Third Department addressed whether counsel was ineffective for failing to request a heightened "intoxication" instruction in a prosecution under Vehicle and Traffic Law § 1192(4).

2026More recently, in Ambrosio , supra, the Third Department addressed whether counsel was ineffective for failing to request a heightened "intoxication" instruction in a prosecution under Vehicle and Traffic Law § 1192(4).

1987(People v Todd, 38 NY2d 755 [1975].) The Court of Appeals has conspicuously failed to establish a specific set of guidelines for determining what foundation must be laid for the admission of breathalyzer test results.

1986As a foundational requirement for the admission of breathalyzer test results in a prosecution under Vehicle and Traffic Law § 1192, the People must introduce evidence from which the trier of fact could reasonably conclude, inter alla, that the testing device was in proper working order at the time the test was administered to the defendant (People v Todd, 38 NY2d 755 ) and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions (People v Donaldson, 36 AD2d 37 ; People v Meikrantz, 77 Misc 2d 892 ).

2025Not to be overlooked is the fact that in December 2024, the Fourth Department declined to follow Caden N. ( see People v Dondorfer , ___ AD3d ___, ___, 225 NYS3d 494 , 502-504 [4th Dept 2024]).

2011(People v Morrisey, 21 AD3d at 598-599 ; Gagliardi v Department of Motor Vehs., 144 AD2d at 884 ; People v Rawley, 2007 NY Slip Op 51237[U] , *5-6.) The rationale for Vehicle and Traffic Law § 1194 (2) (a)’s implied consent, moreover, is to avoid a result where the greater a driver’s intoxication, the less is her accountability.

2011(See People v Morrisey, 21 AD3d at 598 ; Gagliardi v Department of Motor Vehs., 144 AD2d at 884 ; People v Rawley, 16 Misc 3d 1103[A] , 2007 NY Slip Op 51237[U] , *5-6 [Sup Ct, Bronx County 2007].) While the scant prevailing authority does hold that a refusal need not be knowing to trigger a license forfeiture or to admit the refusal as evidence in the prosecution of a charge under Vehicle and Traffic Law § 1192, in each instance the evidence also showed that the driver was not unconscious, unresponsive, or unaware of the warnings given, or the driver actually consented.

2011(People v Morrisey, 21 AD3d at 598-599 ; Gagliardi v Department of Motor Vehs., 144 AD2d at 884 ; People v Rawley, 2007 NY Slip Op 51237[U] , *5-6.) The rationale for Vehicle and Traffic Law § 1194 (2) (a)’s implied consent, moreover, is to avoid a result where the greater a driver’s intoxication, the less is her accountability.

2011(See People v Morrisey, 21 AD3d at 598 ; Gagliardi v Department of Motor Vehs., 144 AD2d at 884 ; People v Rawley, 16 Misc 3d 1103[A] , 2007 NY Slip Op 51237[U] , *5-6 [Sup Ct, Bronx County 2007].) While the scant prevailing authority does hold that a refusal need not be knowing to trigger a license forfeiture or to admit the refusal as evidence in the prosecution of a charge under Vehicle and Traffic Law § 1192, in each instance the evidence also showed that the driver was not unconscious, unresponsive, or unaware of the warnings given, or the driver actually consented.

2008Furthermore, “other avenues of challenge to the accuracy of the breathalyzer test are available” to a defendant, and a “defendant may not be denied discovery which prevents him [or her] from challenging the reliability and accuracy of the machine” (People v Alvarez, 70 NY2d 375, 380 [1987], citing People v English, 103 AD2d 979 [1984]).

2006Consequently, I would reverse the order insofar as appealed from and reinstate counts two and six. [ 821 NYS2d 660 ]

2005It was held in People v Grinberg ( 4 Misc 3d 670 , 672 n 1 [Grim Ct, Kings County 2004, Margarita Lopez Torres, J.]), that: "[C]hemical analysis is necessary for a prosecution under Vehicle and Traffic Law § 1192 (4) for driving while ability is impaired by drugs.

1996(See, United States v Torres, 28 F3d 1463, 1464 [7th Cir]; United States v One Single Family Residence, 13 F3d 1493 [11th Cir].) Judicial opinions throughout New York are divided as to whether suspension of a driver’s license pending prosecution and the prosecution of a violation of Vehicle and Traffic Law § 1192 occur within the same or separate proceedings.

1996(Same: People v McLees, supra; People v Frank, supra; People v Golio, NYLJ, Dec. 12, 1995, at 32, col 4 [Nassau Dist Ct]; People v Rugsley, Greene County Ct, Oct. 27, 1995; People v Rawlins, Just Ct, Town of Chili, Nov. 7, 1995; Separate: People v Hamilton, Oswego City Ct, Apr. 4, 1995; People v McRobbie, supra.) It is evident, however, from a fundamental reading of the statutes, that the Legislature contemplated and provided for, within the same criminal proceeding, the imposition of criminal sanctions for violating Vehicle and Traffic Law § 1192 (2) or (3) subsequent to a suspension pending

1996(Same: People v McLees, supra; People v Frank, supra; People v Golio, NYLJ, Dec. 12, 1995, at 32, col 4 [Nassau Dist Ct]; People v Rugsley, Greene County Ct, Oct. 27, 1995; People v Rawlins, Just Ct, Town of Chili, Nov. 7, 1995; Separate: People v Hamilton, Oswego City Ct, Apr. 4, 1995; People v McRobbie, supra.) It is evident, however, from a fundamental reading of the statutes, that the Legislature contemplated and provided for, within the same criminal proceeding, the imposition of criminal sanctions for violating Vehicle and Traffic Law § 1192 (2) or (3) subsequent to a suspension pending

1996(Same: People v McLees, supra; People v Frank, supra; People v Golio, NYLJ, Dec. 12, 1995, at 32, col 4 [Nassau Dist Ct]; People v Rugsley, Greene County Ct, Oct. 27, 1995; People v Rawlins, Just Ct, Town of Chili, Nov. 7, 1995; Separate: People v Hamilton, Oswego City Ct, Apr. 4, 1995; People v McRobbie, supra.) It is evident, however, from a fundamental reading of the statutes, that the Legislature contemplated and provided for, within the same criminal proceeding, the imposition of criminal sanctions for violating Vehicle and Traffic Law § 1192 (2) or (3) subsequent to a suspension pending

1995Recently, the Court of Appeals in Atkins (supra) allowed a BAG test for drugs to be admitted into evidence when the defendant consented to take the test within two hours of arrest, and where the test was actually administered 2 hours and 28 minutes after the arrest.

1989In Serrano (supra) an "extended” pretrial hearing was held in a prosecution under Vehicle and Traffic Law § 1192 to determine the admissibility of certain "certificates of analysis” being offered by the People as part of their foundation for the admission at trial of a defendant’s breathalyzer test results.

1986As a foundational requirement for the admission of breathalyzer test results in a prosecution under Vehicle and Traffic Law § 1192, the People must introduce evidence from which the trier of fact could reasonably conclude, inter alla, that the testing device was in proper working order at the time the test was administered to the defendant (People v Todd, 38 NY2d 755 ) and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions (People v Donaldson, 36 AD2d 37 ; People v Meikrantz, 77 Misc 2d 892 ).

1986As a foundational requirement for the admission of breathalyzer test results in a prosecution under Vehicle and Traffic Law § 1192, the People must introduce evidence from which the trier of fact could reasonably conclude, inter alla, that the testing device was in proper working order at the time the test was administered to the defendant (People v Todd, 38 NY2d 755 ) and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions (People v Donaldson, 36 AD2d 37 ; People v Meikrantz, 77 Misc 2d 892 ).

1986People v Gower ( 42 NY2d 117 ) does not establish a contrary rule, despite its suggestion that it might be appropriate to shift the emphasis in such matters from "technical issues of admissibility of evidence to means for measuring its persuasive weight” (id., pp 121-122).

1985Since there is no indication in this record that the police were acting in bad faith by not preserving a sample of defendant’s breath, and since a breath sample would not have been exculpatory or material, notions of due process and fundamental fairness under New York law do not require that the results of defendant’s breath test be suppressed (see, People v Farrell, 58 NY2d 637 [ampoule used in administering breathalyzer test destroyed in accordance with routine practice; held breath test results admissible]; People v Briggs, 81 AD2d 1017 [blood sample “ ‘inadvertently lost or destroyed’ ”; h

1985In the context of a prosecution under Vehicle and Traffic Law § 1192 (2), breath test results constitute powerful, but not conclusive evidence of guilt (see, People v Ippolito, 100 AD2d 734 ), and, contrary to defendant’s suggestion, the impeachment devices mentioned above remain available to a defendant charged under the statute.

1985Since there is no indication in this record that the police were acting in bad faith by not preserving a sample of defendant’s breath, and since a breath sample would not have been exculpatory or material, notions of due process and fundamental fairness under New York law do not require that the results of defendant’s breath test be suppressed (see, People v Farrell, 58 NY2d 637 [ampoule used in administering breathalyzer test destroyed in accordance with routine practice; held breath test results admissible]; People v Briggs, 81 AD2d 1017 [blood sample “ ‘inadvertently lost or destroyed’ ”; h