September 12, 2013

Defense attorney: Legislator didn't drive impaired

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.”  

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