People v. Gingello

motor vehicle accident. There is no indication that defendant caused the accident and he was not charged with any offense directly resulting from the accident. The officer observed indicia of alcohol consumption, although not necessarily intoxication. Moreover, the officer's observations of defendant's eyes and speech can be caused by a number of conditions and do not provide sufficient indicia of intoxication (see, People v Sanchez, NYLJ, June 6, 1994, at 29, col 4). Further, although the officer stated his opinion that defendant was intoxicated, he also stated that defendant submitted to a breath test, the result of which constitutes prima facie evidence that defendant was not intoxicated. Based upon the totality of the factual allegations, the court finds that the accusatory instrument is facially insufficient to support the charge of driving while intoxicated. A person of ordinary intelligence, judgment and experience would not believe it reasonably likely that the offense of driving while intoxicated was committed (CPL 70.10 [2]). This decision does not imply that a .06 % BAC constitutes a legal impediment to a conviction for driving while intoxicated (see, People v Lawrence, 53 AD2d 705 [.05% BAC did not establish innocence of DWI]; People v Yost, supra, at 2 [.05% BAC not legal impediment to conviction for DWAI]). Nor does this decision imply that a prosecution for driving while intoxicated pursuant to Vehicle and Traffic Law § 1192 (3) is foreclosed where the BAC is less than a .10% (see, People v Coutard, supra, at 639; People v Perez, NYLJ, Dec. 13, 1991, at 30, col 1 [statute does not give results conclusive effect but creates rebuttable presumption]). This court is merely determining the facial sufficiency of an accusatory instrument laid before it. In determining facial sufficiency, the court is obligated to look at all of the factual allegations in the accusatory instrument and here the factual allegations do not rise to the standard required by law. The court need not determine if the allegations are sufficient to support a charge of driving while ability impaired by alcohol, in violation of Vehicle and Traffic Law § 1192 (1), as the law does not allow for the amendment of simplified informations (CPL 100.45 [3]). The accusatory instrument is dismissed.