Motorist, A Liquor License Holder, Is Acquitted Of All Criminal Charges Relating To Dwi Arrest

On September 9, 2008 a Queens Jury returned a not guilty verdict on all criminal charges arising from the arrest of the Defendant, a liquor license holder and bar/restaurant owner. The Defendant was arrested on December 12, 2006 and charged with Driving While Intoxicated, a Class-A Misdemeanor, under two separate and distinct theories: Common Law DWI and Blood Alcohol Content of more than .08%. The evidence established that the Defendant did take a chemical test of his blood at the Intoxicated Driver Testing Unit which registered a .09%. Attorney Todd D. Greenberg attacked the result of the Chemical Test/Intoxilyzer Machine by pointing out on cross-examination the Arresting Officer that although the reading was .09% at the time of the test, approximately one hour after the arrest, that does not necessarily mean that the reading of .09 was valid at the time of the operation of the vehicle. Mr. Greenberg was able to elicit from the witness that depending on a person’s rate of metabolism and the time when the person had a drink and ate, that due to the absorption of the alcohol from the stomach to the blood system, the blood alcohol level could have been lower at the time of operation than at the time of the test. Although the Defendant admitted to the Police that he had consumed alcohol, the District Attorney could not establish the time that Defendant was drinking and, therefore, was not able to argue to the jury as to whether the .09 reading would have been higher or lower at the time the Defendant was operating the motor vehicle. Additionally, the Defendant was charged with Aggravated Unlicensed Operation of a Vehicle in the Third Degree, based on the fact that he had several suspensions of his license. Most recently, the United States Supreme Court held in the Crawford case that a Defendant in a criminal case has a right to confront the witnesses against him. The District Attorney attempted to introduce into evidence an Affidavit of Regularity/Mailing of the Motor Vehicle Bureau to establish that the Defendant was mailed a letter of suspension and therefore knew or had reason to know of his suspension, a material element of that charge. Based on a Crawford objection raised by Mr. Greenberg that evidence was not permitted to be seen by the Jury. Without that necessary element, Mr. Greenberg’s Motion to Dismiss the Misdemeanor charge was granted prior to submission of the case to the Jury. Although the Defendant was acquitted of all Misdemeanor charges and has no criminal record, he was found guilty of a lesser charge of Driving While Impaired, a violation and not a crime, which has no effect on his liquor license.

Tags: Criminal Verdicts, DWI Cases, DWI News, News
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