whether the device used was in good working order at the time the test was administered; and whether the test was properly given.7 (Evidence that the test was administered by a person possessing a valid New York State Department of Health permit to administer such test allows, but does not require, the inference that the test was properly given.)8] [NOTE: If there was an improper refusal to submit to a test, add: Under our law, if a person has been given a clear and unequivocal warning of the consequences of refusing to submit to a chemical test and persists in refusing to submit to such test, and there is no innocent explanation for such refusal, then the jury may, but is not required to, infer that the defendant refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol, a drug, or drugs in violation of law.9] In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, both of the following two elements: That on or about (date) , in the County of (county), the defendant, (defendant’s name) , operated a motor vehicle; and That the defendant did so while his/her ability to operate the motor vehicle was impaired by the combined influence of drugs or of alcohol and any drug or drugs. People v. Freeland, 68 N.Y.2d 699 (1986). 7 See People v. Freeland, 68 N.Y.2d 699, 701 (1986); People v. 8 Mertz, 68 N.Y.2d 136, 148 (1986). See Vehicle and Traffic Law § 1194(f); People v. Thomas, 46 9 N.Y.2d 100 (1978), appeal dism. for want of a substantial federal question, 444 U.S. 891 (1979).
whether the device used was in good working order at the time the test was administered; and whether the test was properly given.7 (Evidence that the test was administered by a person possessing a valid New York State Department of Health permit to administer such test allows, but does not require, the inference that the test was properly given.)8] [NOTE: If there was an improper refusal to submit to a test, add: Under our law, if a person has been given a clear and unequivocal warning of the consequences of refusing to submit to a chemical test and persists in refusing to submit to such test, and there is no innocent explanation for such refusal, then the jury may, but is not required to, infer that the defendant refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol, a drug, or drugs in violation of law.9] In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, both of the following two elements: That on or about (date) , in the County of (county), the defendant, (defendant’s name) , operated a motor vehicle; and That the defendant did so while his/her ability to operate the motor vehicle was impaired by the combined influence of drugs or of alcohol and any drug or drugs. 7 People v. Freeland, 68 N.Y.2d 699 (1986). 8 See People v. Freeland, 68 N.Y.2d 699, 701 (1986); People v. Mertz, 68 N.Y.2d 136, 148 (1986). 9 See Vehicle and Traffic Law § 1194(f); People v. Thomas, 46 N.Y.2d 100 (1978), appeal dism. for want of a substantial federal question, 444 U.S. 891 (1979).
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