
    The People of the State of New York, Plaintiff, v. Paul F. Hepker and Michael M. Caschera, Defendants.
    County Court, Allegany County,
    June 5, 1969.
    
      Edward F. Mergler, District Attorney (John T. D’Arcy of counsel), for plaintiff. Fleischer & Fitzer (Robert L. Fleischer of counsel), for defendants.
   William W. Serra, J.

This is an appeal from a judgment of conviction in the Village Justice Court of the Village of Wells-ville, New York, on April 16, 1969. The defendants were both convicted of violation of section 1227 of the Vehicle and Traffic Law, entitled “ Consumption of alcoholic beverages in certain motor vehicles ’ ’ following a trial before the court. The evidence adduced as shown by the return is to the effect that at about 2:50 a.m. on February 24, 1969, the defendants were followed by a New York State police officer for about a mile. At a point in the village, the defendants’ car, operated by the defendant Caschera, was stopped for a “ routine check ” by the police officer. The car was pulled over to the curb and the police car stopped behind it. When the officer checked the car, he could see two opened beer bottles on the floor of the car. On request, the driver handed the partly consumed beer beside him to the officer. The passenger, when ordered to hand out the bottle drank it up as fast as he could.” The officer testified both smelled of alcohol, appeared to have been drinking, had bloodshot eyes, and were belligerent. The officer did not observe either defendant drinking while the Caschera automobile was in motion on the public highway.

The elements of the offense which must be proved beyond a reasonable doubt are, (1) drinking, by (2) an operator or passenger, (3) alcoholic beverages, (4) in a motor vehicle, (5) being driven upon the public highways. While an inference could be drawn that the defendants may have been drinking while the vehicle was being driven on the public highways, the state of proof is equally consistent with the hypothesis that they entered the car and drove away with the partly consumed bottles of beer or that they could have consumed the beer in any other manner or time than while the car was being driven upon the public highways. As a matter of law it cannot be said that the burden of proof has been met. The judgments of conviction are reversed and the fines remitted. The records of conviction in the Village Justice Court and in the Department of Motor Vehicles shall be amended accordingly. Each of the defendants may apply to the Commissioner of Motor Vehicles for the issuance of a duplicate or substitute operator’s license which shall not contain any record of the reversed conviction for violation of section 1227 of the Vehicle and Traffic Law, in the Village Justice Court, Wellsville, New York, on April 16, 1969. For the purpose of section 501 (subd. 1, par. g) of the Vehicle and Traffic Law, such marked operators’ licenses of these defendants shall be deemed mutilated.  