Appeal from a judgment of the Criminal Court of the City of New York, Kings County (James Burke, J.), rendered July 18, 2006. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired.

Judgment of conviction reversed on the facts, accusatory instrument dismissed and fine, if paid, remitted.

Upon our weight of the evidence review (see People v Danielson, 9 NY3d 342, 348-349 [2007]), we find the trial proof insufficient to support defendant's conviction of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). After being stopped at a police roadblock shortly after 4:00 A.M. on August 6, 2005, defendant exhibited bloodshot, watery eyes, a flushed face, and the odor of an alcoholic beverage on his breath. Defendant was not asked to perform roadside sobriety tests, and a field test of defendant's blood alcohol content failed to produce "an exact reading." Defendant admitted consuming one or two beers earlier in the evening. By the arresting officer's own account, defendant otherwise exhibited no indication of a physical impairment of his ability to operate a motor vehicle (People v Cruz, 48 NY2d 419, 427 [1979]), and the officer did not testify as to his personal opinion of defendant's degree of impairment. The record establishes that defendant ultimately consented to take a breath test, which produced a reading showing a blood alcohol content of .026 of one per centum, and that three hours after his arrest, defendant performed various physical coordination tests, certain of which, in the arresting officer's view, defendant failed. Before deliberating, the court adopted the presumption that the test result was prima facie proof that defendant was not impaired (Vehicle and Traffic Law § 1195 [2] [a]). [*2]

While defendant exhibited certain of the physical effects associated with the consumption of alcoholic beverages, the evidence failed to establish, beyond a reasonable doubt, that defendant's ability to operate his vehicle "was impaired to some extent" (People v McNamara, 269 AD2d 544, 545 [2000]), that is, that defendant was "incapable of employing the physical and mental abilities one is expected to possess when operating a vehicle" (People v Peck, 16 Misc 3d 126[A], 2007 NY Slip Op 51213[U] [App Term, 9th & 10th Jud Dists 2007]). The videotape of the physical coordination tests administered to defendant some three hours after his arrest revealed, at best, minor deviations from a proper performance, which even the arresting officer attributed to failures to follow instructions rather than to a physical incapacity. Similarly, while defendant was observed traveling 5-10 miles per hour in excess of the speed limit and stopped his vehicle 50-100 feet past the checkpoint, rather than at the checkpoint itself, neither event so unequivocally supports an inference of an impaired ability to operate a vehicle, even in conjunction with the remaining indicia of alcohol consumption, so as to overcome the presumption in defendant's favor and establish defendant's guilt beyond a reasonable doubt (see People v Wenz, 12 Misc 3d 134[A], 2006 NY Slip Op 51194[U] [App Term, 9th & 10th Jud Dists 2006]).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 30, 2008