¶1The evidence does not suffice to establish beyond a reasonable doubt that defendant was guilty of driving an automobile “ while in an intoxicated condition ” in violation of the Vehicle and Traffic Law, section 70, subdivision 5. (See People v. Weaver, 188 App. Div. 395, 400/ 401.)
¶2The judgment should be reversed, the information dismissed, fine remitted and license restored.
¶3McAvoy and O’Malley, JJ., concur; Merrell and Pinch, JJ., dissent and vote to affirm.
¶4Judgment reversed, the information dismissed, the fine remitted and license restored.