 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Prescott2/13/2001
This case presents the question whether attempted driving while intoxicated and attempted aggravated unlicensed operation of a motor vehicle are legally cognizable offenses. For the reasons to follow, we conclude that they are not.
On the evening of November 13, 1998, Jeffrey Orlando and his wife were alerted by sounds outside their home. When Orlando looked out the window, he saw defendant getting into Orlando's truck. Orlando stepped outside and found defendant in the front seat of the truck, with the keys in the ignition, attempting to start the vehicle. Although the vehicle was operable, defendant was having difficulty engaging the engine because " he truck is hard to get started when it is cold and you have to know how to do it." When Orlando confronted defendant, defendant indicated that he wanted to use the truck to pull his own vehicle out of a nearby ditch. According to Orlando, defendant was "out of it."
Defendant was thereafter charged with numerous offenses, including attempted driving while intoxicated (Penal Law §110.00; Vehicle and Traffic Law § 1192 , ) and attempted aggravated unlicensed operation of a motor vehicle in the first degree (Penal Law §110.00; Vehicle and Traffic Law §511 ) with respect to Orlando's vehicle. Defendant filed an omnibus motion seeking, among other things, dismissal of those counts of the indictment on the basis that it is not legally possible to commit the crimes of attempted driving while intoxicated or attempted aggravated unlicensed operation of a motor vehicle in the first degree
County Court granted the motion and dismissed the charges in question (183 Misc 2d 181) Relying on this Court's decision in People v Campbell (72 NY2d 602), the court ruled that because the core conduct in the offense of driving while intoxicated "is not the operation of a motor vehicle, but the operation of a motor vehicle while in an intoxicated condition," and the "element" of intoxication does not require proof of a specific intent, it is legally impossible to commit the crime of attempted driving while intoxicated (id., at 183-184 [emphasis in original]).
The Appellate Division unanimously reversed (263 AD2d 254). The court concluded that the crime of driving while intoxicated is a strict liability crime not because it proscribes a result as in Campbell, "but because it proscribes particular conduct" (People v Campbell, 72 NY2d, at 256, supra). Applying this Court's rationale in People v Saunders (85 NY2d 339), the court determined that a person can be found guilty of attempted driving while intoxicated when, while intoxicated and with intent to operate the vehicle, the person engages in conduct which tends to effect the commission of such crime (263 AD2d, at 256).
With respect to aggravated unlicensed operation of a motor vehicle in the first degree, the Appellate Division held that the element of that offense that made it a strict liability crime (i.e., driving while intoxicated) is merely an aggravating circumstance that elevates the severity of the crime and, thus, an attempt was possible (id., [citing People v Fullan, 92 NY2d 690, 693- 694; People v Miller, 87 NY2d 211, 217]). A Judge of this Court granted defendant leave to appeal and we now reverse.
I. Generally, where a penal statute imposes strict liability for creating an unintended result, an attempt to commit that crime is not a legally cognizable offense (see, People v Campbell, 72 NY2d, at 605-606, supra). One cannot attempt to create an unintended result. By contrast, where a penal statute imposes strict liability for committing certain conduct, an attempt is legally cognizable, since one can attempt to engage in conduct (see, People v
Page 1 2 3 4 5 New York DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|