Levine Staller Wins Pro Bono Appeal of DUI Conviction

Attorneys Tony Morgano and Paul Chan successfully appealed the conviction of Armond DeCicco, who was convicted of driving while intoxicated.  Levine Staller argued that the State’s proofs at trial were insufficient to establish beyond a reasonable doubt that he “operated” the vehicle while intoxicated or that he intended to drive while intoxicated at the time of his arrest. The Appellate Court agreed and reversed Mr. DeCico’s DUI conviction.

The facts of the case are as follows: a trooper, responding to a report about an “erratic driver,” found DeCicco’s car parked in a field at a Buena Vista campground.  It was alleged that DeCicco had previously been evicted from the campground, and was trespassing on the property. The State Trooper found DeCicco in the driver’s seat holding a can of beer in his hand. The keys were in the ignition, but the engine was not running. The Trooper testified that he could feel heat coming from the front of the car and heard crackling sounds from the engine. The Defendant admitted drinking beer hours prior,  said he was at the campground to pick up his mail, had resumed drinking again only after he had parked his vehicle for the night, and was staying to “sleep[] it off.” He denied any intention to operate the vehicle while intoxicated.

Mr. DeCicco failed a field sobriety tests and his BAC measured 0.09. At trial, he was represented by prior counsel. He did not testify or call any witnesses, but, his counsel disputed that the State had failed to prove that he had operated the vehicle while intoxicated, either when driving to the campground or with respect to his intention to drive as of the moment the police encountered him.

The municipal judge found Mr. DeCicco guilty. With respect to the issue of operation, the judge noted several times in his oral opinion that the Defendant had admitted that he had driven to the campground. The judge also adopted the testimony of the Trooper-who he found to be credible-that defendant’s car was still warm, thus inferring that defendant has recently driven. Additionally, the judge found that the defendant had an “intent to drive” from the campground “because he knew that he wasn’t welcome there.”

Levine Staller was then assigned the case pro bono, and appealed the case on Mr. DeCicco’s behalf. On appeal, Levine Staller contended that a) the State failed to show that Mr. DeCicco “operated” the vehicle while he was intoxicated, b) there was no evidence that Mr. DeCicco intended to operate his vehicle while intoxicated, c) the State failed to provide Mr. DeCicco with a Speedy Trial.

The Appellate Court found that the State failed to meet its burden of proof because Mr. DeCicco’s admission that he had driven to the campground did not establish a timeline to show that he was intoxicated when he did so and the state produced no eyewitnesses to defendant’s alleged erratic driving. The Court found that it was speculative to infer that the Mr. DeCicco was actually intoxicated when he drove to the campground. The mere fact that the engine was warm was insufficient to find that he had operated his vehicle, because he could have turned on the air conditioning to keep cool. Further, the Court accepted Levine Staller’s argument that the State’s proofs were insufficient to establish that Defendant intended to drive away from the campground because he was not welcomed there. Hypothetically if he were directed to leave, he could have called a third party to move his vehicle, or he could have walked off site and abandoned the vehicle.

The Court concluded that “this case represents an exceptional situation in which a defendant’s conviction of DWI must be set aside because the State did not meet the most rigorous burden of persuasion imposed by law.”

The full case text can be found here:


Congratulations to Tony Morgano and Paul Chan  for successfully winning this pro bono DUI appeal.

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