The defendant had four champagne cocktails and a shot of whiskey with her lunch. She testified at her DWI trial that she did not feel drunk when she left the restaurant prior to getting in her car to drive home. She then wanted to explain to the jury that she must have been drugged at the restaurant without her knowledge and that is the reason that she failed a field sobriety test and blew a .25 on the intoxilyzer. A second witness who was dining with her also wanted to testify that she felt drugged after the meal. The problem this defendant had was that the Judge wanted no part of this explanation. The Judge ruled that the defendants mere speculation alone was not sufficient evidence to allow her to give her theory over to the jury.

Why not? You may ask. The defendant has a right to assert any defense she feels may help her, why not let her speculate for the jury that she was drugged during lunch thus causing her to become intoxicated. The Judge reasoned that without any additional proof her testimony is purely speculative and therefore the jury should not hear it. The defendant was found guilty.

The defendant appealed this case on the issue of whether the trial judge was within his rights to disallow her speculative theory. In People vs. Brosnan (Abigail) the Appellate Term ruled that the conviction is affirmed. The Court stated the trial court did not improvidently exercise its discretion in precluding defendant’s proffered testimony that she felt that she had been drugged, and the testimony of another witness who also was claiming that she too had the feeling that she had been drugged at the restaurant at which they had both been dining prior to defendant’s driving, as such testimony lacked a good faith basis and would have been too speculative. Defendant made no offer of proof that someone at the restaurant had been observed putting a drug in any of the drinks served to defendant’s table, and, in any event, defendant failed to demonstrate that the chemical breath test of defendant’s blood alcohol content reading of .25 of one per centum by weight would have been affected by her having been drugged. Defendant’s blood alcohol content established defendant’s violation of Vehicle and Traffic Law § 1192 (2-a) (a) beyond a reasonable doubt.

The lesson we can learn from this is simple – listen to your clients explanation and try your best to prove it out. If the defense attorney here had some additional proof, then perhaps the trial court would have allowed the testimony. Were there any video cameras at the restaurant? Did they reveal that the drinks were truly drugged? Has this happened to other patrons? Hire an undercover investigator to go into the same restaurant and order drinks and test the drinks – would that be enough proof? Which drug when mixed with alcohol has the effect of causing a .25 read on an intoxilyzer? The trial court just needed another piece of information to somehow corroborate the defendants theory and then perhaps the jury would have heard this defense theory. Apparently, the defendants dining partner who also felt drugged after lunch was not enough.

Remember that part of your defense attorneys job is to listen to your defense and help you prove it in any way he can. At Bienenfeld Law we listen, give us a call 212-363-7701.

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