PEOPLE v. PRIMIANO

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County Court, Sullivan County, New York.

The PEOPLE of the State of New York v. Kevin P. PRIMIANO, Defendant.

Decided: July 25, 2007

Stephan Schick, Monticello, for defendant. Stephen F. Lungen, District Attorney, Monticello (K.C. Garn of counsel), for plaintiff. Andrew M. Cuomo, Attorney General, Poughkeepsie (Barry Kaufman of counsel).

Defendant Primiano, through his attorney, submits an Order To Show Cause (OSC) requesting the charge of Driving While Ability Impaired By Combined Influence of Alcohol and a Drug or Drugs pursuant to section 1192(4-a) of Vehicle and Traffic Law to be dismissed.

The People submit an affirmation in opposition to the OSC.

The Attorney General was served as required but declined to submit at this stage of litigation.

Oral argument was held on June 28, 2007.

This is a first impression case in the State of New York regarding the enhanced DWI laws under V & T § 1192.

Defendant was originally arrested on March 15, 2007 by the police on a routine traffic stop.

Defendant was charged, inter alia, under V & T § 1192(4), driving while ability impaired by drugs, as a class E felony in the Village of Monticello Justice Court.

Defendant waived to County Court.1

Thereafter, in preparing for Grand Jury presentation, a blood specimen tested by the New York State Police at the Mid Hudson Regional Crime Laboratory in Newburgh, New York showed an blood alcohol level of .04 and the presence of the drug Trazodone.

After the defendant waived to County Court and upon further review by the People, the violation of V & T § 1192(4) was replaced by the newly enacted V & T § 1192(4-a), driving while ability impaired by a combination of alcohol and a drug.2

The new charge of V & T § 1192(4-a) is also charged as a class E felony.3

V & T § 1192(4) reads as follows;

“Driving while ability impaired by drugs.   No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.” (emphasis added.)   Newly enacted V & T § 1192(4-a) reads as follows:  “Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs.   No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.”

(emphasis added).

V & T § 1192(4) defines the word drug as “defined in this chapter”.

V & T § 114-a states:  “The term “drug” when used in this chapter, means and includes any substance listed in section thirty-three hundred six of the public health law.”

Newly enacted V & T § 1192(4-a) does not define the word drug or indicate that the word drug should follow the definition as prescribed in V & T § 1192(4).

The defendant argues that the word drug as used in newly enacted V & T § 1192(4-a) is defined as a public health law § 3306 drug per V & T § 114-a or, if not, the new statute is unconstitutionally vague as to the meaning of the word drug.

The defendant seeks dismissal of the V & T § 1192(4-a) charge either because;  1. the drug, Trazodone, found in the defendant's system is not a proscribed drug under public health law § 3306 and thus, defendant's conduct does not violate either V & T § 1192(4) or newly enacted 1192(4-a) or lack of a definition of the word drug in V & T § 1194(4-a) is so vague and ambiguous that the newly enacted statute is unconstitutional and charges brought under this statute must therefore be dismissed.

The People 4 argue that the newly enacted V & T § 1192(4-a) uses the words “any drug or drugs” and must be taken literally.

The defendant responds that a literal use of the term “any drug or drugs” would risk violation of the new statute by driving a motor vehicle after consuming one drink and ingesting aspirin or vitamins not listed in public health law § 3306.

The People argue, based upon public policy, that if alcohol and any drug, even aspirin or vitamins, are mixed the statute still requires impairment to be caused by the mixture.

Admittedly, there seems to be an ambiguity as to what “drug” must be mixed with alcohol in this new statute and the legislative history would be important to discern intent.

This Court has reviewed the Bill Jacket pertinent to this new legislation under Bills S8232 and A11859.   There is no discussion whatsoever in the Bill Jacket or in the numerous letters sent to the Governor urging passage regarding the definition of or use of the words “any drug or drugs”.

The Bill Jacket does speak to the legislative intent or justification of the statute based upon the escalating injuries and deaths cause by impaired and intoxicated drivers and the need to expand current laws in this regard.

The term “drug” as used throughout the Vehicle and Traffic Law pertains to any substance listed in public health law § 3306.

V & T § 114-a;  also see, Handling the DWI case in New York, Peter Gerstenzang, Esq. and Eric H. Sills, Esq., 2007 excerpt, West Publishing Company.

Section 114-a, which defines the term “drug” in the Vehicle and Traffic Law, has been in existence since 1973 and has been unchanged since, See, V & T § 114-a, McKinney's Consolidated Law of New York, Book 62A, P. 26, legislative History, and the Court can not presume that the Legislature intended to broaden the definition of “drugs” under V & T § 114-a.

In promulgating newly enacted V & T § 1192(4-a) the legislature had the opportunity to amend the definition of the word “drug” under V & T § 114-a or to redefine the term “drug” as applied to the new legislation.   The legislature chosen not address the issue.

This Court holds that the term “any drug or drugs” as used in newly enacted V & T § 1192(4-a) means any substance listed in public health law § 3306 as required under V & T § 114-a.   Thus, the Legislature is invited to address this statutory definition forthwith so that citizens may be aware of the requirements of the law and violators may be lawfully prosecuted to protect society against escalating injuries and deaths caused by drug and/or alcohol impaired drivers.

Based upon the above, it is

ORDERED, that the charges against the defendant under V & T § 1192(4-a) are herein and hereby dismissed as a matter of law.

This shall constitute the Decision and Order of this Court.

FOOTNOTES

1.   Defendant was originally charged with V & T § 1192(4) as a felony pursuant to an allegation of a prior conviction of V & T § 1192(1),(2),(3) or (4) within the preceding ten years per V & T § 1193(1)(c) and waived a preliminary hearing in the local criminal court since the defense claims an issue of law not fact.

2.   V & T § 1192(4-a) is a newly enacted law, having been passed, as part a vast DWI reform in the 2006 legislative session in chapter 732, on September 13, 2006, signed by the Governor and became effective on November 1, 2006.

3.   V & T § 1193(1)(c) was amended by Chapter 732 to include new section 1192(4-a).

4.   The Attorney General put on notice of the constitutional challenger herein elects to have the Sullivan County District Attorney represent their interest.

FRANK J. LABUDA, J.