New York Criminal Jury Instructions can be quite confusing both to lawyers and juries. Legalistic explanations many times confuse both litigates and juries alike.
1192.2 (DWI-Per Se) AND 1192.3 (Common Law DWI) ARE EQUALLY SERIOUS IN PENALTIES AND RAMIFICATIONS
1192.2 – DRIVING WHILE INTOXICATED–PER SE – Misdemeanor punishable up to a year in jail
Occurs when the accused’s actual True Blood Alcohol Content is Above the Legal Limit at the Time of Operation of the Vehicle. This charge has a reading, which can be rebutted by a number of factors discussed in this article. It does not mean that the breath test machine’s reading on an individual breath test is an accurate indicator of their True Blood Alcohol Content at the time the test is given, or at the time of operation of the vehicle. Also there is no Presumption that the test result is accurate for the accused, only that the Machine used has been generally found to be reliable as long as certain variables are taken into account. No expert need appear in the Prosecution of a DWI breath test case to explain the scientific underpinnings of Machine, which are two. They are the Baer Lambert Law and Henry’s Law. It is important to understand that the acceptance of the Machine as reliable does not stand for the proposition that any of the alleged safeguards of the machine, such as the Residual Mouth Alcohol Detector (also called the Slope Detector), or the Radio Frequency Detector, or any other alleged safeguards and the computer programs they are based upon are in fact valid, because they are not tested. Because these safeguards are not tested to determine if they are reliable, there is no presumption of reliability extended to them under the law, and nothing in the jury charge instructs the jury to presume they are reliable. Therefore, while the principles of Baer Lambert, and Henry’s Law are presumed reliable; the Slope Detector, Radio Frequency Detector, and other safeguards designed to protect against a false reading have never been validated.
1192.3 – DRIVING WHILE INTOXICATED Misdemeanor punishable up to a year in jail
Occurs when an operator has consumed alcohol to the point that they are incapable to operate a motor vehicle with the Mental and Physical Faculties required of a Reasonable and Prudent Driver. PEOPLE V. CRUZ,
Instead of always using just the word “incapable”, some courts choose to use the words “incapable or impaired to a substantial extent in operating vehicle with the Mental and Physical Faculties required of a Reasonable And Prudent Driver.”
1192.1 – DRIVING WHILE IMPAIRED – A conviction of this will result in a person having Criminal Record as New York Law does not permit a person to get their fingerprints and photographs back, and the conviction is open to the Public. While a conviction for this section is only a traffic infraction, it still is always on your record as an arrest, and will effect job employment in many areas, ranging from Police Officers to School Teachers.
A violation of 1192.1 occurs when a person has consumed alcohol to the point that they are impaired to any extent in terms of driving with the mental and physical faculties required of a Reasonable and Prudent Driver. Evidence of below .06 is evidence that a person was not intoxicated, or impaired by alcohol under 1192.3 and 1192.1.
WHAT DOES PRESUMED INNOCENT MEAN?
Simply put, the Jury must look at the evidence going into the trial, and during the trial with a predisposition that the allegations made by the Prosecutor and Police are false. In a DWI case, the predisposition is that the when witnesses for the Prosecution give testimony that is hurtful to the accused, that they are making false allegations, or the inferences from observable facts, have an innocent explanation. The jury should be of the mind set, that the accused was driving their car properly, that any observations claimed by the Police being indicative of intoxication, such as Slurred Speech, Poor Balance, Bloodshot eyes, as well incriminating statements allegedly made by the accused, are either false or have an innocent explanation. The jury should consider that any field tests given to the accused that establish intoxication were not given correctly or are not valid for the accused, or the accused’s performance is not related to alcohol and has an innocent explanation, unless established otherwise. While many people can say they will follow the courts instructions on the accused being presumed innocent. The strengthen of this belief can be easy demonstrated, by the following example. Imagine the best person you know, you love, who you have always know to be good, honest, peaceful person, being accused of a horrendous crime like murdering a stranger. You initial reaction of disbelief, that this is impossible is the most classic example of the meaning presumed innocence.
WHAT IS THE BURDEN OF PROOF?
The Prosecution has the burden to eliminate all reasonable doubts pertaining to their allegations, ranging from the whether the procedures the Police Department uses is acceptable by scientific community of forensic breath testing for police purposes, of accuracy of any breath test as being an accurate indicator of the defendants Blood Alcohol Content not only at the time of the breath test, but also at the time of the defendant is accused of operating their vehicle. Also they must eliminate any Reasonable Doubt that they the Instrument they are using, is being properly used, and that all options of safeguards that are available from Manufacturer have been ordered, and are being used in any suspect tests. This would include using duplicate testing, as well as not disabling any safeguards on machine, in particularly the LED indicator on the machine which would help an operator verify that the breath test reading is acceptable.
Moreover, Prosecutors of establishing beyond a reasonable doubt that any inference of guilt that is drawn from an established fact is the only inference that can be logically and fairly drawn from that fact, and excludes beyond a reasonable doubt any hypothesis of innocence. For example, if the Prosecutor Introduces evidence that the defendant had Bloodshot eyes, by way of a photograph, or testimony of a witness; they must establish that those Bloodshots eyes were attributable to Intoxication, or Impairment of Drugs, rather than some other causes like fatigue, medical conditions, crying, being only impaired by alcohol, being involved in an accident or that being how the persons eyes are normally. Unless all innocence reasons can be excluded beyond a reasonable doubt then that fact, ie Bloodshot eyes, can not help the Prosecutors case, and must be disregarded.
WHAT IS CIRCUMSTANTIAL EVIDENCE
A DWI case is always a circumstantial case, with or without a breath test. If there is a positive breath test later on back at the station the jury is required to draw an inference as whether or not that is an accurate indicator of the accused true blood alcohol content, and if it does it is then required to draw an inference as to whether or not that is representative of the accused true blood alcohol content at the time of the operation of the motor vehicle in question.
The pattern New York Criminal Jury Instruction can be summarized as follows: Circumstantial evidence requires the drawing of inferences, the process involved in analyzing that evidence and what a jury must do before they turn a verdict of guilty based solely on circumstantial evidence. Initially, they must decide on the basis of all of the evidence, what facts, if any, have been proven. Any facts upon which an inference of guilt can be drawn must be proven beyond a reasonable doubt.
After a jury has determined what facts, if any, have been proven beyond a reasonable doubt, then you must decide what inferences, if any, can be drawn from those facts. Before a jury may draw an inference of guilt, however, that inference must be the only one that can fairly and reasonably be drawn from the facts, it must be consistent with the proven facts, and it must flow naturally, reasonably, and logically from them.
Most importantly, it must appear that the inference of guilt is the only
one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.7 If there is a reasonable hypothesis from the proven facts consistent with the defendant's innocence, the jury must find the defendant not guilty.8
An example of this are the typical allegations that Police Officers make to justify an arrest of the driver, like bloodshot eyes. In order to draw an inference of guilt, that is the person is under the influence of alcohol or drugs, the Prosecution must establish that the bloodshot eyes was solely caused by intoxication or drugs, rather then some other cause: like allergies, crying, fatigue, car accident, medical condition, being tired, etc. So any inference supporting guilty from a factual observation must be the only one that can be drawn, and it must exclude beyond a reasonable doubt any other inference that is consistent with innocence. This Police on the other hand rely on exactly the opposite process that Police use to make there arrests, and base their opinion on. Unlike a jury they disregard and exclude any possible inference that the Drivers eyes could be related to something other than alcohol. Furthermore, they make no attempt to determine if there is any other cause for the subjects eyes. Thank God juries can not have such tunnel vision,
Basically if two inferences can be drawn from the same fact, ie Allegation of Bloodshot eyes, one consistent with guilty and one consistent with innocence. The jury must draw the inference consistent with innocence in reaching there determination, unless the Prosecutor has established beyond a reasonable doubt, that no other inference of innocence can be drawn.
If there was an accident involved, the prosecutor must establish that the accident was caused by intoxication or being under influence of drugs beyond a reasonable doubt. That is they must exclude any innocent possibility that the accident was caused by something other than being intoxicated or impaired by alcohol or drugs. ie driver distraction, fatigue, mechanical problems with vehicle, cellphone usage, the person accused just being a poor driver, weather conditions. Indeed common experience tells us that the vast majority of accidents are not caused by intoxication or impairment.
WHAT IS A REASONABLE DOUBT?
Simply put, Reasonable Doubt is a Doubt that the juror can provide a reason for, it is not an imaginary doubt, or a make believe doubt, but a doubt for which there can be a reason stated based upon the evidence adduced at trial, or based upon a lack of convincing evidence provided by the prosecution. It may not be the best reason, or the strong reason, but if it reason that gives rise to a doubt, it is sufficient to be the basis of acquittal of the person charged.
HOW HIGH IS THE REASONABLE DOUBT STANDARD?
It is the highest standard of proof in our law. The Standard of Proof for a Prosecutor or Agent of the State to take a persons children away then the convict a person accused of a crime, in fact the standard of proof needed by the Prosecutor to commit a person to a mental institute for the rest of their lives is much lower than Reasonable Doubt.
In a Recent Study among Judges it was revealed that most Judges put the Standard at well over 97 percent certainty in determining guilt. According to New York State Jury Charge pertaining to Circumstantial Evidence, if two inferences can be drawn from the same fact, one consistent with innocence and one consistent with guilt, the Jury must go with the inference consistent with innocence. In doing so they have to use the Reasonable Doubt Standard. That means, the innocent explanation must be overcome by the Prosecutor beyond a Reasonable Doubt. The accused always wins on a tie, 50-50, which is very similar to the suspicion standard police use, but far lower than the Reasonable doubt Standard, because the accused are Presumed Innocent under the law, and the Burden of Proof is always on the Prosecutor and never shifts to the accused. The law states that the accused never has to prove or disprove anything.
EXAMPLE OF REASONABLE DOUBT
An Good example of how to explain Reasonable Doubt is as follows. Take a bottle of 100 or even 500 aspirins and asking a person to take one, who thinks or feels they may have a headache. Before the person takes that pill which all look the same an inform them that one pills cynanide and that if they take the wrong pill they will die instantly, as no antidote exists. Although the chances of picking the wrong pill are very small 100 to 1, most people would have a REASON TO DOUBT that their headache is that bad, or a Reason to Doubt to take that pill, because the ramifications are that great. Although people convicted of DWI do not currently face the death penalty in New York, a conviction for 1192.2 Driving While Intoxicated per see, or 1192.3 Driving While Intoxicated, are both misdemeanors, with same penalty, up to one year in jail, 1000 Fine, 6 month revocation of drivers’ license, and a Criminal Record that will follow the accused for the rest of their life. A conviction for these charges will literally destroy a persons’ life, with no possible avenue for redress as New York State does not have an expungement statute.
WHAT IF THE JURY BELIEVES THE READING IS PRODUCE ON INSTRUMENT IS ACCURATE INDICATOR OF TRUE BLOOD ALCOHOL CONTENT OF THE ACCUSED?
That is even if the Jury accepts the Breath Test result as accurate, they are permitted but not required to infer from the test result that the defendants BAC was above the legal limit. THERE IS NO PRESUMPTION THAT ANY BREATH TEST RESULT IS ACCURATE IN THE LAW!! NOR DOES A JURY HAVE TO ACCEPT ANY PRODUCED RESULT AS ACCURATE AND CAN REJECT IT FOR ANY REASON PROVIDED BY THE EVIDENCE OR LACK OF EVIDENCE PRODUCED AT TRAIL.
EXAMPLES THAT GIVE RISE TO REASONABLE DOUBT IN DWI CASES
FAILURE TO VIDEOTAPE AND ENSURE THAT CRUCIAL STEPS IN THE BREATH TESTING PROCESS TOOK PLACE BY PROSECUTOR
Failure to establish that the no regurgitation occurred prior to the breath, test, or that there no mouth alcohol, or trace contamination was in the accused oral cavity prior to the time of the test, will result in Reasonable doubt.
Failure to videotape the suspect during the Period of Observation or the Actual Breath test is fatal to the establishment of a accurate and reliable reading on any breath test suspect.
Failure to establish that accused blow only once into the mouthpiece must be established, but it often overlooked as it is by police officer who do not know the significance of allowing repeated blows by an accused on the same mouth piece during the breath test sequence when they are asked to deliver a sample.
Most prosecutors can not eliminate the above areas which causes Reasonable Doubt. While the many Police departments like NYPD, and smaller departments like Old Brookville , have adopted the Quality Assurance Protocol of videotaping either both the Period of Observation, and Breath Test being done, as Field Sobriety Test back at the station such policies have not widely used in Nassau or Suffolk, and in Nassau Cases have been discontinued. No wonder Police Overtime on DWI cases has reached a mind boggling all time high. One only has to check the Police Salaries on the internet to see why the Police may be fighting bringing Quality Assurance to Breath Testing. Less Quality Assurance means more likelihood innocent people will be charged. More Innocence people go to trial than guilty People. More trials, more overtime for the Police in Court. A vicious cycle. The only people that suffer are the jurors, taxpayers, and the accused.
FAILURE TO ASK A BREATH TEST SUBJECT IF THEY HAVE VOMITED, BLECHED, REGRUITED IN THEIR MOUTH PRIOR TO TEST OR AFTER TEST.
Although this is a very simple safeguard that is used in most police departments in the Country, many police departments in New York State neglected this common sense safeguard, and instead rely on the Residual Mouth Alcohol program AKA the Slope Detector to pick this up. It is this unjustified belief in the infallibility of this program, that has caused many breath techs, to cut corner on the period of observations, blowing technique (allowing Multi blows on same mouth piece during the same breath test cycle which maxes out at 3 minutes – that is a subject can blow numerous times over the course of three minutes on the same mouth piece and get a reading the machine will deem acceptable provided that 4 criteria are meet. Most breath techs are not aware of this very real problem with trace contamination by multiple blows and often claim that the suspect “delivered only one continuous blow”. Having seen almost 100 videos on Intoxilyzer 5000EN tests from NYPD, I have seen this happen more times than not, and not one Police Officer ever a changed the mouth piece. Nor do any procedures currently exist in NYPD, NCPD, or SCPD to do so. One can tell if multiple blows did exist by looking at the printout card of the subject test, and see how much time it took between the last air blank before the test, and the air blank after the test, if this is more than one minute than more than one blow existed, usually lengthens of blows are anywhere from 2 to 7 seconds. Given the test result pops up immediately as the calculation that does the actual breath reading is done in milliseconds, anything longer shows that multiple blows were conducted and no mouth piece was ever change.
FAILURE TO GIVE A SECOND TEST TO CONFIRM THE FIRST TEST Every Breath Test result must be or repeated to ensure that first test result was not a result of operator error, residual mouth alcohol, Radio Frequency Interference, or improper blowing technique in terms of delivering the sample. With being able to duplicate it, no reading can be consider reliable or accurate. Not only will the Police Department not give a second test to confirm the results of the first test, but they will deny a persons requested to take a second test. This defies common sense and fairness. In addition, they will frequently deny a persons’ right to an independent blood test when requested, although under the law they are required to make every effort for a suspect to get a blood test if requested, and it can be held against them for refusal to do so.
SUSPECTS APPERANCE AND ABILITY TO PERFORM SFST ARE INCONSISTENT WITH READING.
If a suspect has a high reading, and is not swaying, slurring their speech, has impaired motor coordination, no unsteady when walking, or staggering this is not only inconsistent with readings of .08 but very inconsistent with readings above that legal threshold. Furthermore, a person s performance on the SFST back at the station or in the field if properly given can clearly rebut, a breath test result of .08 or more, and can serve as a basis of acquittal of 1192.2, 1192.3, and 1192.1. Some Experts argue that ABC Rhomberg Balance Test, ABC test, Finger to Nose Test are just as valid as One Leg Stand, Walk and Turn and HGN. Interestingly, the most recent research has shown that the HGN which frequently is touted by the Police as being most reliable when it only had a reliability rate of 77 percent if given properly, and graded properly, leaving a whopping 23 false positive rate!!!, In fact the only study that was completely dedicated to the reliability of the HGN test, showed that this as well other research touting a even higher reliability rate were incorrect. In The Robustness of HGN, a NHSTA sponsored study, an analysis of the data, gather showed, that even when administered correctly and graded correctly the HGN produced a false positive rate of 67%, moreover 68% of individuals who had four or more clues, where below .05 BAC - That Legally Sober in New York State!!! One individual who had six clues and had a BAC .019. These percentages fall Far below Reasonable Doubt. Moreover, it is the most subjective test, because there are absolutely no standards as to how much or little a jerk in the eye constitutes a clue, For example the existence of slight nystagmus is not considered by many in field to even be a clue, but yet are often considered as a clue by the Police in making an arrest. Everyone has a nystamus to some extent, and fatigue, medication, as well as a multitude of scenarios c can cause it on a legally sober individual. Readings of as low as .02 in the blood will produce nystagmus in many individuals.
FAILURE TO VIDEOTAPE SUSPECT FIELD TESTS IN FIELD OR BACK AT STATION
Many Police Departments have the ability to videotape SFST back at the station. Nassau County has the ability and actually does so on DWI REFUSAL cases. Given the burden of proof is on the accusers, Police and Prosecutors, any failure to do so, without good reason should be held against the Prosecutors, and favor the defendant, as it clearly falls in the realm of “lack of evidence” The reason that this is not done, is because a strategic decision was made by law enforcement not to make this evidence available to trial juries, because it frequently provides strong evidence that rebuts the breath test result, and officer opinions on Intoxication. At the present time the In New York Police Departments who do Videotape Field Tests, either do not videotape the HGN test being done at all, or do so in a manner that anyone viewing the tape will be unable to see the results. Videotaping the eye movements is an easy task can be by and handheld smart phone that has a recording device. Videotaping these eye movements is being utilized by Police Departments throughout the Country. Presently, the Nassau County Police Department refuses even to videotape the HGN test on video for any purposes, instead giving it either on the bench or in the booth before the breath tests, to eliminate any possible witnesses, to whether it was done correctly, I recently cross examined one of Nassau County Breath Tech who I had been doing it wrong for several years. On those rare occasions, where the Nassau County Police Officer did it on video they did it incorrectly. One of Nassau County Top DWI Police Officers had to resign after it was revealed through a surveillance video that he lied about how he administered certain Field Tests, and after another Police Officer allegedly came forward and indicated that this Officer had previously stated he gave SFSTs when in fact he did not!!!
FAILURE OF PROSECUTOR TO ESTABLISH THAT THE AMOUNT OF ALCOHOL CONSUMED BY ACCUSED CONSISTENT WITH THE BREATH TEST READING AT TIME OF TEST, OR ABOVE LEGAL THRESHOLD AT TIME OF OPERATION.
It is a very simple calculation any chemist can do, in determining what a person estimated Blood Alcohol Calculations is at the time of the test, and the time of operation. All the chemist needs to know is Gender of Sex of the Accused, Body Weight of the Accuse, and What the defendant had to consume. One would expect the Prosecutor to show that this amount of alcohol would correspond to the Breath Test Reading or the Above the Blood Alcohol Content at time of operation. If the information is available at trial, the Prosecutors will attempt to introduce this type of evidence. On the other hand, if it is inconsistent with the reading, and will not show that at the time of operation, the accused was above the legal limit, they will fight to keep it out, even though it is formulas it is based upon have not only been accepted in the scientific community for the last 60 years, but as well as NHSTA , the Federal Government and all State Governments.
FAILURE OF THE PROSECUTION TO BRING IN AMBULANCE, MEDICAL PERSONEL
In those cases, where there is an accident, one would expect to they Prosecution, who has the burden of proof to bring in Medical Personal, Emergency Medical Personal, the Nurses in the Trauma Unit, and the Treating Doctors of the Arrested Drivers. The failure to produce these individuals and/or introduce there medical records as allowed by law leads to only one conclusion, that these individuals will not be able to support the prosecution witnesses. While the Prosecutors, unlike the Defense Attorney has immense power and ability to bring the Medical Personal to Court they will not use it if these witnesses will testify that the defendant was not intoxicated, or impaired, or will contradict the Police Officers opinions. Moreover, sometimes pressure is exerted on these individuals to retract their opinions contained in the report, or to minimize there findings, and at worse not to cooperate with defense counsel. I rarely subpoena Medical personal l and instead rely on their records. Clearly, EMTs, Nurses. and Doctors will record any and all observations consistent with injury or intoxication. Slurred Speech, Impaired Motor Functions, Impaired Decision making, Unsteadiness of gait, Poor Motor Coordination or any noticeable behavior disorders, which will be found in the record. As medical personal have repeatedly stated if I made these observations I would have recorded them. For Example AOB means Alcohol on Breath, whereas entries like ETOH or ETOH questionable indicate that there was an allegation by the Police or Law Enforcement that the defendant may have been consuming alcohol.
On those rare occasions these Medical personal testify pursuit to our subpoena said individuals are compensated for their time, within the bounds of the law and with the full knowledge of the Court, Prosecutor, and Jury.
REPUTATION OF THE ACCUSED
The Jury instructions pertaining to Reputation evidence, establish that evidence of an accused good reputation for a given trait, like sobriety, can in and of itself provide Reasonable Doubt on a jury verdict where none has previously existed. “Evidence of good character or reputation, even if believed, does not excuse criminal conduct if that conduct is proven beyond a reasonable doubt. When considered with all the other evidence in the case, however, evidence of good character may give rise to a reasonable doubt where, without it, none would exist.