BAEC Bulletin | New Year 2022 | 31
Case Facts In Caden, the defendant/driver and three friends had smoked some “dutchies” (hollowed out cigars replaced with marijuana) while driving one of the passengers to work in Horseheads NY. After dropping one off, the defendant and the other two drove to a nearby mall parking lot where they smoked some more marijuana. The passengers described the defendant’s driving at different points as “fast,” “reckless” and a “little quick” on some turns. At one point, he made a turn without yielding the right of way to an oncoming vehicle. As the defendant approached another intersection, he activated his turn single and made a left turn in front of an oncoming motorcycle (which one of the passengers and two other drivers travelling behind the defendant had seen) which struck the defendant’s front bumper, killing both the driver and his passenger. The defendant told police that he did not see the motorcycle. Though the police observed a baggie of marijuana on the street near the defendant’s vehicle, they did not detect an odor of marijuana coming from him. He was later described as exhibiting blood shot and watery eyes, a noticeable fluttering under the eyelids and a right leg tremor while performing some field sobriety tests at the police station. A subsequent blood test (within three hours of the accident) revealed 2.2 ng/ml of Delta-9 THC and 33 ng/ml of Delta-9 Carboxy THC in the defendant’s system. (The motorcyclist’s blood was found to contain 0.73 ng/ ml of THC). Forensic toxicologists called by the People testified that the Carboxy THC was a relatively high concentration (although, unlike alcohol, it was not susceptible to reverse extrapolation) and that marijuana adversely affects a person’s perception and reaction time. In their estimation, the defendant’s psychomotor performance would have been impaired at the time of the accident. A forensic pathologist called by the defense testified that there were too many unknown variables to draw a conclusion with respect to the defendant’s level of impairment at the time of the collision. Information from the Event Data Recorder in the defendant’s vehicle indicated that he was travelling in a straight line five seconds before impact and then increased the steering input by 55 percent one second before the collision, thereby depriving the motorcyclist of enough time (at least one and ½ seconds) to react and avoid running into the vehicle. In the People’s view, the defendant failed to yield the right of way to the oncoming motorcycle because he was impaired by the use of marijuana which adversely affected his driving ability and caused the death of two people. The AD Rejects the Old Definition of Impairment By Use of Drugs The court noted that the statutory scheme of the Vehicular Manslaughter statutes (PL 125.12 [2d degree] and 125.13 [1st degree]) imposes the same sanctions on one who causes death while INTOXICATED as on someone who causes death as the result of being IMPAIRED by use of a drug. Such a distinction, in the court’s view, can only be deemed consistent if the SAME STANDARD is applied to each misdemeanor offense (VTL 1192- 3 and 1192-4) incorporated within the Vehicular Manslaughter statute. Consequently, the degree of impairment necessary to convict a person of Vehicular Manslaughter based on a death caused
while the defendant was under the influence of a drug, including marijuana (PHL 3306) is the SAME DEGREE OF IMPAIRMENT as would be necessary to sustain a conviction of DWI, i.e., that the defendant was INCAPABLE of employing the mental and physical capabilities required of a reasonable and prudent driver. (Citing People v Cruz, supra at 428). As such, the court abandoned the less stringent definition of impairment. (People v Rossi, 163 AD2d 660 [1990]). AD Affirms Conviction Under the Stricter Standard The trial court, after a bench trial, convicted the defendant of Vehicular Manslaughter 1st degree (based on two victims killed in the same incident), granted him Youthful Offender (YO) status, and sentenced him to an indeterminate prison term of one-to- three years. The AD affirmed the conviction, finding the evidence was legally sufficient to support the conviction and, while a different verdict would not have been unreasonable, the guilty verdict was not against the weight of the evidence. In particular, the court found that there was sufficient proof of both IMPAIRMENT AND CAUSATION, i.e., that the defendant’s impairment from smoking marijuana shortly before the crash and manner of operation (as described by his passengers), his failure to see the oncoming motorcycle (unlike the drivers behind him) on a straight roadway in broad daylight, and his sharp turn across the cyclist’s path constituted a sufficiently direct cause of the ensuing deaths. (People v Ballenger, 106 AD3d 1375, 1377 [3d Dep’t 2013]). As the court saw it, it was foreseeable that the victims could die as a result of the defendant’s conduct. (Citing People v Li 34 NY3d 357. 369 [2019]). Final Thought While the trial court in Carden found the defendant guilty by the former definition of impairment, the AD affirmed the conviction by the more rigorous standard even though the evidence as to manner of operation and of the defendant’s physical appearance was arguably “garden variety.” Beyond being described as driving fast at earlier points in time and failing to yield to an oncoming vehicle, the evidence did not show “out-of-control” driving, the defendant activated his turn signal before turning, and the data recorder showed that he slowed down as he approached the intersection. There was also conflicting testimony with respect to the distance from the motorcycle when the defendant initiated the left turn. Further, the defendant was not described as having slurred speech or a staggered gait at the scene. The motorcyclist also had traces of marijuana in his system. While the change in the law to bring the definition of impairment by use of drugs in line with the definition of intoxication makes logical sense, there is always the chance that factfinders will interpret the evidence in the light most favorable to the prosecution in cases of vehicular fatality. That is why defense counsel cannot underestimate the importance of the decision whether to proceed to trial with or without a jury. •
HON. TIM FRANCZYK (RET.) Deputy for Legal Education Assigned Counsel Program, Aid To Indigent Prisoner’s Society, Inc
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