Breathalyzer Results After Two Hours; An Issue of Consent

Oftentimes, when individuals refuse to submit to a breathalyzer test, there are consequences they must be warned of by police. However, these consequences are not absolute. In People v. Odum (Ct. App. 5/3/2018) (Stein, J.) (5-2), the Court of Appeals held that because the breathalyzer test was not administered pursuant to Vehicle and Traffic Law § 1194, and the defendant’s consent to take the test was not voluntary, the results of the test were properly suppressed.

The defendant in this case was arrested on multiple charges, including operating a motor vehicle while under the influence of alcohol. More than two hours after his arrest, he was asked by police to submit to a breathalyzer test. When defendant said no, he was given “refusal warnings” as set forth in Vehicle and Traffic Law § 1194. In pertinent part, these warnings indicate that if defendant refuses to submit to breathalyzer testing, his driver’s license would be revoked, whether or not he was guilty, and his refusal would be entered into evidence against him in any trial proceedings from the arrest. Following these warnings, the defendant agreed to take the breathalyzer test.

At the threshold, the Court of Appeals held that because the breathalyzer test was not performed within two hours of the defendant’s arrest, and the requirements necessary to obtain a court order pursuant to the Vehicle and Traffic Laws were not met, the tests results were not admissible under the statutory scheme. The Court then proceeded to an analysis developed in People v. Atkins, which states that the test results may still be admissible if the defendant voluntarily consented to take the test because the two hour limitation has no application when the defendant expressly consents to the test.  At issue in this case was whether the warnings given for refusal to consent were legally accurate, and thus, whether the defendant’s consent was indeed voluntary.

The Court noted that pursuant to Vehicle and Traffic Law § 1194 (2)(f), evidence of refusal to take a breathalyzer test is admissible. There is no time limit expressly enunciated in this provision. However, the Court of Appeals focused on the language of Vehicle and Traffic Law § 1194(2)(a), because § 1194 (2)(f) refers back to this section, which authorizes the chemical test. Vehicle and Traffic Law § 1194(2)(a) provides in turn that a defendant is deemed to have given consent to a chemical breath test so long as the test is administered within two hours after such person has been placed under arrest for driving while intoxicated.

Therefore, the Court of Appeals held that “because the warnings given to defendant were at least partially inaccurate — i.e., as to the admissibility at trial of his refusal to submit to testing — the courts below properly suppressed the results of the breathalyzer test on the ground that defendant’s consent to take the test was involuntary.”

Chief Judge DiFiore dissented because she believed that the only holding consistent with precedent, the purpose of the statute, and the record before the court is that the statutory two-hour rule has no applicability to the refusal warnings provided to a motorist who consents to a breath test. (JC/LC)

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