September 12, 2013

Defense attorney: Legislator didn't drive impaired

By DENISE A. RAYMO Press-Republican

---- — MALONE — Franklin County Legislator Guy “Tim” Smith’s defense attorney says the sobriety test his client took could clear him of a charge of driving with ability impaired.

Meanwhile, Clinton County District Attorney Andrew Wylie has been named special prosecutor in the case.


Smith’s counsel, Kevin Nichols of Malone, says the vehicle-and-traffic law that covers blood-alcohol content “does not recognize” the first blood-alcohol number that Smith reportedly recorded the night he was charged.  

Smith was pulled over at about 6 p.m. Aug. 15 on Route 37 near the Malone/Westville town line by a sheriff’s deputy who reported that he saw the vehicle being driven erratically.

Deputy Luke Cromp, with the assistance of State Police Trooper James Gwinn, administered a field-sobriety test that registered a blood-alcohol content of .055 percent, according to Undersheriff Patrick White.

A later test at State Police barracks had a reading of .05 percent, White has said.


Smith, who was charged with driving while his ability was impaired by alcohol and failure to remain in his own lane, pleaded not guilty and is to return at 9:30 a.m. Oct. 1 to Malone Town Court.

Nichols said “the law does not recognize a reading of .055. It’s either a .05, .06 or .07.”

He said, as an example, that a person charged with aggravated driving while intoxicated must have a blood-alcohol content of .18 to be charged, “so you’re never going to see .179. It doesn’t round up. And you never see more than a .05, so a .055 is not admissible.

“And the law says .05 percent is prima-facie evidence that you are not impaired,” Nichols said.

Prima facie means “on the first appearance” or “a fact presumed to be true unless it is disproved.”


According to Section 1192 of the New York State Vehicle and Traffic Law for driving offenses, there is no BAC measure listed for driving while ability is impaired by drugs or alcohol other than to say that “no person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by alcohol.”  

Section 1195 explains the levels of blood-alcohol content, and DWAI is addressed, stating that “evidence that there was .05 percent or less in a person’s blood-alcohol content shall be prima-facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol and that such person was not in an intoxicated condition.”

The wording in the same section of law for a charge of driving while intoxicated states that a DWI arrest can be made if the blood-alcohol content is .08 percent or more.


Nichols said the field-sobriety test Smith took at the roadside was only for determining if alcohol was present, not the level of blood-alcohol content. 

An actual BAC number wasn’t recorded until his client was taken to the State Police barracks, he said.

Smith was on his way to his sister’s house when he was stopped, Nichols, said though he declined to say where the legislator as coming from that night.

Nichols said his client “has had the same reaction anybody else would having their name in the newspaper with a big headline — he finds it distressing. 

“Every day that goes by, it becomes more stressful.”

Smith refused to speak to the Press-Republican.


Asked if his client believes he was singled out for arrest, as some fellow legislators think, the attorney said, “We have no idea what happened, at this point.”

Legislators suggested last week that the Sheriff’s Department budget should be cut and that eight deputies fully trained with policing powers should be reclassified to correction officers so they can no longer make arrests.

Legislator Paul Maroun demanded in that meeting that County Sheriff Kevin Mulverhill provide written proof that Cromp was on the road that night fulfilling an assignment to check on registered sex offenders and not waiting to deliberately waylay Smith.

The trained deputies have made 32 other vehicle-and-traffic arrests since January.

Email Denise A.