I.PROCEDURAL HISTORY

The defendant, Brian J. Schulman (hereinafter referred to as "defendant"), was charged with violating the New York State Vehicle and Traffic Law § § 1192(3) [Driving While Intoxicated], 1194(1)(b) [Refusal of Breath Screening Test], 1128(a) [Moved From Lane Unsafely], 1129(a) [Following Too Closely], and §1227-1 [Consumption or Possession of Alcoholic Beverage in Motor Vehicle], all in connection with an incident allegedly occurring on the 4th day of December, 2010, in the Town of Greece, County of Monroe, State of New York. Pursuant to the Order of the Hon. Alex R. Renzi, Supreme Court Justice, dated December 23, 2010, this matter was transferred from the jurisdiction of the Town of Greece to the jurisdiction [*2]of the Town of Parma. The defendant knowingly, intelligently, and voluntarily, waived his right to a trial by jury by signing a Jury Trial Waiver Form and requested this Court to render a decision following a fair and impartial trial on April 11, 2011.

II.STATEMENT OF FACTS

At the trial of this matter, the People of the State of New York (hereinafter referred to as either the "People" or "Prosecution") presented the following direct evidence for the court: two (2) witnesses-specifically, Greece Police Department Officer Keith Beer, and Greece Police Department Officer Brandon Goater, two (2) exhibits-specifically, Exhibit No. 1, entitled "DWI Warnings", and Exhibit No. 2, entitled "Commissioner's Warnings and Refusal to Submit to Chemical Test". The defendant after having been advised of his constitutional right to testify in his own behalf and his right to remain silent exercised his right to remain silent and did not present any other evidence for the Court.

From a review of the transcript of the trial in this case, the facts presented that the defendant was operating his vehicle, a 2009 gray Toyota, on December 4, 2010 in the Town of Greece at approximately 5:46 p.m. when the defendant's vehicle was involved in a motor vehicle accident. Specifically, as Officer Beer's testimony revealed, Officer Beer was dispatched by 911 to the location of West Ridge Road near Nantucket Street where he personally observed two vehicles, one vehicle in the far left turning lane, and a second vehicle behind it, with EMS and fire response units attending several patients. Officer Beer indicated that he questioned an operator if he was driving one of the vehicles and the operator responded that he was driving the vehicle, specifically Vehicle 2. Officer Beer testified that Vehicle 2 would have been the striking vehicle in the accident, the gray Toyota. Officer Beer identified the defendant through his New York State Driver's License as operator of Vehicle 2, the striking vehicle, or gray Toyota.

Officer Beer testified that there was damage to the defendant's vehicle and while looking inside the gray Toyota, the Officer had discovered a 12-ounce can of Labatt's Blue beer in the center console, half full. During his continued investigation, while Officer Beer was in the back of an ambulance, he asked the defendant if the defendant had anything to drink, and the defendant said "No". Officer Beer thereafter asked the defendant where he was coming from and the defendant replied "Staples". Officer Beer testified that the defendant did detect a strong odor of an alcoholic beverage, and observed the defendant's eyes were glassy, watery and bloodshot. Officer Beer testified that he was sitting in the rear facing chair in the back of the ambulance directly over the defendant's face while making these observations, approximately two feet away. From inside the ambulance, Office Beer attempted to perform the Horizontal Gaze Nystagmus test and provided the defendant with basic instructions using the Officer's pen. According to Officer Beer, the defendant indicated to the Officer in sum and substance "I am not going to do that. Just get me to the hospital", and the defendant closed his eyes and refused to cooperate. Officer Beer thereafter testified that the defendant was taken by ambulance to Unity Hospital in the Town of Greece for additional treatment.

During his Direct Examination, Officer Beer testified that he has had the opportunity to investigate approximately twenty (20) other alleged intoxication incidents and based on his training and the recognition of an intoxicated individual, looks for common characteristics such as "slurred speech, glassy, watery eyes, altered gait, inability to stand." Among the specific factors that Office Beer considers in determining if a person is intoxicated, he looks for "the odor of alcohol on the breath, slurred speech, bloodshot, watery eyes, uncooperativeness." In this [*3]particular case, Officer Beer testified that the defendant exhibited all of the factors in determining if a person is intoxicated. As a result, Officer Beer testified that in his opinion, "he had been driving while under the influence of alcohol." As a result, Officer Beer thereafter placed the defendant under arrest and issued uniform traffic tickets, among which was New York State Vehicle and Traffic Law § § 1192(3) [Driving While Intoxicated], 1194(1)(b) [Refusal of Breath Screening Test], 1128(a) [Moved From Lane Unsafely], 1129(a) [Following Too Closely], and §1227-1 [Consumption of Alcoholic Beverage in Motor Vehicle].

During the Cross Examination of Officer Beer, he testified that when he first spoke with the defendant, he was located in the ambulance on a backboard, and secured to that backboard with his head secured from any movement as well. Also on cross examination, Officer Beer testified that he noted the defendant had very slurred speech and did not ask the defendant to perform any field sobriety tests other than the Horizontal Gaze Nystagmus. In addition, Officer Beer answered in the affirmative that in this particular case, Officer Beer did not have the benefit of any field sobriety test results. With regard to the 12-ounce can of Labatt's Blue located in the vehicle, Officer Beer testified that there was in fact an open container sitting in the center console cup holder, and did not recall if the can or the content was cold or not.

On Re-Direct Examination, Officer Beer indicated that he did not have the defendant perform any further field sobriety tests as the defendant was strapped to a backboard, was unable to perform the other tests, and the defendant's response made it very clear that he was not going to perform any further tests. On Re-Cross Examination, Officer Beer testified that as he recalled, he asked the defendant several times to take the HGN Test and each time his response was to close his eyes and to say "just get me to the hospital".

The Court heard additional testimony from Greece Police Officer Brandon Goater who was also dispatched to the location of 2081 West Ridge Road at the intersection of Nantucket in the Town of Greece. Officer Goater made an observation of the operator of the gray Toyota. Specifically, Officer Goater indicated that the operator of the vehicle had an odor of alcoholic beverage coming from his breath, glassy, watery, bloodshot eyes. Officer Goater indicated that once the defendant was transported to Park Ridge Hospital, he was read his DWI Warnings. (See Exhibit No. 1). Officer Goater testified that he did in fact administer these warnings on the evening to the defendant and read them word for word as they appeared on the Exhibit.

Moreover, Officer Goater thereafter read the Commissioner's Warnings with regard to refusing to take the breath test (See Exhibit No. 2). Specifically, the Commissioner's Warnings and Refusal to Submit to Chemical Test, Exhibit No. 2, were read at 7:30p.m, 7:35p.m., and 7:40p.m., approximately almost 2 hours after the motor vehicle accident. According to Officer Goater, the defendant answered "No" to each of the questions with regard to taking the breath test. Lastly, Officer Goater testified that as he was administering the Commissioner's Warnings for DWI for refusing a chemical test, he noted that the defendant had a glassy, watery, bloodshot eyes and a strong odor of alcoholic beverage coming from his breath.

During Cross Examination, Officer Goater testified that he did not speak with the defendant prior to the ambulance personnel placing him on a backboard and inside the ambulance. Officer Goater did testify that the defendant was visibly injured and had a cut on his face between his chin and lower lip. Officer Goater testified that as of the time he was advising the defendant of his DWI Commissioner's Warnings, the defendant had not yet been sutured and was holding a bandage on his face. Lastly, Officer Goater recalls the defendant's chin bleeding and observed the laceration extend approximately the length of the defendant's lower lip. [*4]

Following the testimony of these two (2) law enforcement witnesses, the People rested its case and the defendant exercised his right not to testify in this particular matter.

III.LEGAL ANALYSIS

The legal analysis of this case begins with a review the testimony of these two officers. Initially, neither officer rendered an opinion that the defendant was in an intoxicated condition as subdivision (3) of the charged statute of Vehicle and Traffic Law § 1192 specifically requires. Officer Beer stated that the defendant was driving while under the influence of alcohol, but did not testify that the defendant was operating a vehicle in an intoxicated condition. The basis of Officer Beer's indication that the defendant was under the influence of alcohol was the strong odor of alcoholic beverage, slurred speech, glassy watery and bloodshot eyes. In this case, no sobriety tests were completely conducted to determine whether the defendant was operating a motor vehicle in an intoxicated condition, or at the very least operating a motor vehicle while ability impaired, the lesser included offense.

The facts demonstrate that the defendant was asked to complete one field sobriety test, the Horizontal Gaze Nystagmus. There is no requirement, statutory or otherwise, that a DWI suspect submit to field sobriety tests. See, Berkemer v. McCarthy, 468 U.S. 420, 439 (1984). Here, the defendant closed his eyes and did not perform the test in the ambulance. Certainly, this was at a point when the defendant was laying on a backboard with his head and body braced to the board, unable to move, after having been involved in a motor vehicle accident. Officer Beer did further testify that no other field sobriety tests were performed because the defendant's response to the first test made it very clear that he was not going to perform any further tests. However, there is no evidence whatsoever that the defendant was offered any further field sobriety tests, and the defendant may have elected to perform other specific tests if asked. The officer concluded that the defendant would not complete any additional tests so he did not offer any additional tests.

In addition, Officer Goater rendered no opinion whatsoever as to the intoxicated condition of the defendant. Officer Goater did review the DMV Commissioner's warnings with the defendant almost two hours after the motor vehicle accident while the defendant was in the hospital holding a bandage to his chin prior to being sutured. The defendant during this time testified that he would not submit to any blood or other chemical tests, and no other tests were offered to the defendant as well. No other evidence was introduced to corroborate any of the testimony of the law enforcement officers. Certainly, the testimony revealed that the defendant was treated at the scene by ambulance personnel and transported by ambulance to Unity Hospital and treated to some degree by Unity Hospital personnel as well. The People did not solicit any testimony from the EMS or fire units at the scene, the ambulance crew who transported the defendant, the personnel at Unity Hospital who treated the defendant, nor did the People offer to introduce any medical records as business records which may have corroborated any allegations that the defendant was driving his vehicle in an intoxicated condition.

The only evidence that this Court has received is through the Officers' testimony that there was an odor of alcohol, slurred speech, glassy, watery and bloodshot eyes. The odor of alcohol itself does not overcome the burden to prove beyond a reasonable doubt that the defendant was operating a vehicle in an intoxicated condition, nor the lesser included offense of operating while ability impaired. An individual may have an odor of alcohol but not be intoxicated or impaired within the legal definition. See, People v. Miller, 83 Misc 2d 118, 120 [*5](Monroe Co., Webster Town Court 1975); see also, Mulvean v. Fox, 256 A.D. 578 (1st Dep't. 1939) (the odor of alcohol on the defendant's breath was not proof of intoxication). Moreover, the slurred speech, glassy, watery and bloodshot eyes may all be attributable to the nature and extent of the possible injuries received as a result of this accident and the location of the accompanying pain the defendant was experiencing. Lastly, the mere fact of an accident does not give rise to probable cause or even suspicion of the commission of the crime of Driving While Intoxicated. See, People v. Graser, 90 Misc 2d 219, 227 (Erie Co., Amherst Town Court 1977). As a result, the People have not overcome the burden of proof beyond a reasonable doubt with regard to intoxication as charged.

Moreover, the defendant was specifically charged by way of Uniform Traffic Ticket with violation Vehicle and Traffic Law § 1194(1)(b), that is a refusal to submit to a breath screening test ("Alco-Sensor"), the preliminary test to determine the presence of alcohol. Vehicle and Traffic Law § 1194(1)(b) makes it very clear that a motorist must submit to a breath screening test if the motorist has (a) been involved in an accident, or (b) committed any other violation of the Vehicle and Traffic Law. See, Vehicle and Traffic Law § 1194(1)(b) (McKinney's 2011). In this case, the testimony is clear that the defendant was the operator of Vehicle 2, said vehicle being involved in a motor vehicle accident. However, there was no testimony from either officer that the defendant was asked to submit to the Alco-Sensor, or other breath screening test, to determine the presence of alcohol on the defendant's breath pursuant to Vehicle and Traffic Law § 1194(1)(b).

Clearly, the defendant was asked by Officer Goater to submit to a chemical test while at Unity Hospital to determine the presence of alcohol in his blood on three separate occasions. (See, Exhibit No. 2). The defendant refused to submit a blood sample on each of the three occasions. (See id.). However, the defendant was not charged with violating Vehicle and Traffic Law §1194(2), or any other subdivision there under relating to the chemical test, but was charged with allegedly violating Vehicle and Traffic Law §1194(1)(b), the breath screening test, for which there is no indication in the trial transcript whatsoever that the defendant was offered the preliminary breath test. It appears that the officer intended to charge the violation of §1194(2), especially when reviewing the testimony surrounding People's Exhibit 2, however, without a motion to amend the Uniform Traffic Ticket made by the People, the Court must issue a verdict solely on what is charged. See, People v. Graziano, 19 Misc 3d 133(A), 859 N.Y.S.2d 905 (NY Sup. Ct. App Term 2008). With regard to Vehicle and Traffic Law §1194(1)(b), the People have not met its burden of proof beyond a reasonable doubt with respect to that charge.

In addition, the People offered no evidence whatsoever that the defendant was in fact following too closely, or had moved from his lane unsafely. This Court is aware from the testimony solicited that there was at least one other operator and perhaps other passengers involved in this accident in Vehicle 1. On the date of trial, there were no additional witnesses presented by the People, such as lay witnesses, who could have testified that they saw the defendant's vehicle-that is, Vehicle 2, following Vehicle 1 too closely or that the defendant had moved from his singe lane unsafely causing the motor vehicle accident. For this Court to conclude that the defendant was in fact following another vehicle more closely than is reasonable and prudent, or had moved from his lane unsafely, as a result of Officer Beer's observation of the two vehicles in the left turning lane, would be pure speculation.

Moreover, with respect to the last violation-that is, Consumption or Possession of Alcoholic Beverage in a Motor Vehicle, there was testimony that there was a 12-ounce Labatt's [*6]Blue beer can in the center console of the defendant's vehicle, half full. However, the People did not enter any evidence into the record of any kind, that the actual content of the 12-ounce Labatt's Blue beer can was field tested and confirmed to be an alcoholic beverage that defendant was in possession of, or that the defendant was actively consuming the alcoholic beverage in the vehicle at that point in time of operation. During his examination, Officer Beer could not recall whether the can was cold or warm. For the Court to conclude that there was alcohol inside the can and not some other fluid or substance, especially in light of the fact there is no recollection of the 12-ounce can being cold or warm, or for the Court to conclude that the defendant was consuming the 12-ounce can while operating the vehicle, all from the mere fact that a half full can was inside the center console, would be judicial stitchery which this Court is unwilling to perform. Without any further testimony regarding a field test of the content inside the can, or that the defendant was consuming alcohol as he was operating the vehicle, the People have not overcome its burden of proving the charge beyond a reasonable doubt.

IV.CONCLUSIONS OF LAW:

Accordingly, after reviewing the evidence presented, the relevant sections of the Vehicle and Traffic Law cited, and having had a full opportunity to have had due deliberation thereon, this Court concludes that the defendant is not guilty of violating New York State Vehicle and Traffic Law § § 1192(3) [Driving While Intoxicated], 1194(1)(b) [Refusal of Breath Screening Test], 1128(a) [Moved From Lane Unsafely], 1129(a) [Following Too Closely], and §1227-1 [Consumption or Possession of Alcoholic Beverage in Motor Vehicle]. As such,

IT IS HEREBY ORDERED, DECREED, AND ADJUDGED, that following the trial by this Court as to all issues of law and fact, the Clerk of this Court enter a record of acquittal as to the violations of New York State Vehicle and Traffic Law § § 1192(3) [Driving While Intoxicated], 1194(1)(b) [Refusal of Breath Screening Test], 1128(a) [Moved From Lane Unsafely], 1129(a) [Following Too Closely], and §1227-1 [Consumption or Possession of Alcoholic Beverage in Motor Vehicle]; and,

IT IS HEREBY ORDERED, DECREED, AND ADJUDGED, that any bail or bond which may have been posted by or on behalf of the defendant is hereby released.

This constitutes the decision, order, and final judgment of the Justice Court in the Town of Parma, County of Monroe, State of New York.

DATED: May 27, 2011

HON. MICHAEL A. SCIORTINO

Town Justice, Town of Parma