Opinion
October 29, 1970
James J. McDonough for defendant.
William Cahn, District Attorney, for plaintiff.
Defendant moves for an order to inspect the Grand Jury minutes, or, in the alternative, to dismiss the indictment herein.
By indictment dated July 13, 1970, the Grand Jury of Nassau County charged the defendant with the crime of criminally negligent homicide (Penal Law, § 125.10) in the first count; the crime of leaving the scene of an accident (Vehicle and Traffic Law, § 600) in the second count; and operating a vehicle while impaired by the use of a drug (Vehicle and Traffic Law, § 1192, subd. 2) in the third count.
The court, after reading the Grand Jury minutes herein, is satisfied that the evidence presented is legally sufficient to sustain the first and second counts of this indictment which charge the defendant with the crime of criminally negligent homicide and leaving the scene of an accident, respectively.
However, the court concludes that the evidence presented is not legally sufficient to sustain the third count of the indictment which charges the defendant with the crime of operating a vehicle while impaired by the use of a drug. The third count alleges that, "the defendant's ability to operate such motor vehicle was impaired by the use of a drug, to wit: methaqualone".
Methaqualone is not a drug embraced within any of the four categories delineated in section 114-a Veh. Traf. of the Vehicle and Traffic Law, nor is it a drug under subdivision 1 of section 114-a Veh. Traf. of the Vehicle and Traffic Law "which has been designated by the commissioner of health as habit forming, or any other drug which contains any quantity of a substance which the commissioner of health, after investigation, has found to have, and by regulation designates as having, a potential for abuse because of its depressant effect on the central nervous system."
See sections 81.45 through 81.49 of title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York (10A NYCRR 81.45-81.49).
Accordingly, it is ordered, that the defendant's motion to dismiss the indictment herein is denied with respect to the first count thereof which charges the defendant with the crime of criminally negligent homicide, and with respect to the second count thereof which charges the defendant with the crime of leaving the scene of an accident; and the motion is granted to the extent only that the third count of the indictment charging the defendant with the crime of operating a vehicle while impaired by the use of a drug, is hereby dismissed.