Dismissal Due to Insufficient Supporting Depositions in New York
In People v. Coutard, 115 Misc 2d 630, 454 N.Y.S.2d 639  the trial court dismissed the simplified traffic informations charging the defendants in three cases with common law driving while intoxicated due to insufficient supporting depositions.
In each of the cases in question the supporting depositions accused the defendants of having a BAC of below the .10 percent, which was the BAC necessary to be charged with per se driving while intoxicated in violation of VTL 1192(2) at that time.
The court held that "In order to overcome the statutory presumption accorded the operator of a motor vehicle by section 1195, the arresting trooper must submit a deposition of substantially greater proportion, depth and detail than submitted in these cases."
The court went to hold that "It would appear to this court that before a proper charge for the misdemeanor crime of driving while intoxicated can be sufficiently laid in face of a blood alcohol content reading of less than .1% the statutory standard for per se driving while intoxicated at that time a police officer must be able to provide something more that the usual supporting deposition."
Nevertheless, the court gave the People thirty days to charge the defendants therein with "... the appropriate violation of the Vehicle and Traffic Law if they deemed same advisable." (Id. at 639, 645.)