Category Archives: Vehicle and Traffic Law

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)

DWI with a conditional license not a violation of the conditional license

Violating terms of a conditional license is a traffic violation and not considered driving with a revoked license. In People v. Rivera (Ct. App. 5/3/2011) (Smith, J.) (5-2) the Court of Appeals affirmed the dismissal of the charge of Aggravated Unlicensed Operation of a Motor Vehicle 1º.  The Defendant, on November 14, 2007, was convicted of DWI and had his license revoked for a minimum of six months. As a first-time offender, the Defendant was able to get a conditional license that allowed him to drive to and from work, school, the rehabilitation program and from noon to 3 P.M on Saturdays. The Defendant was arrested for driving while intoxicated at 1:04 A.M. on February 20, 2008. He was charged with aggravated unlicensed operation of a motor vehicle in the first degree, under VTL § 511(3).

The Supreme Court granted the Defendant's motion to dismiss the charge prior to trial. The Appellate Division affirmed. The People appealed and the Court of Appeals affirmed 5-2.

The Court held that the Defendant had violated VTL § 1196(7)(f) by operating a motor vehicle in violation of his conditional license. The People had argued that the Defendant violated VTL § 511(3)(a)(i), a class E felony, by operating a motor vehicle knowingly with a revoked license, that the license was previously revoked for DWI, and committed the current crime while driving while intoxicated. The Court supported the Defendant's argument that he could not be charged with driving with a revoked license since he had a conditional license, holding that the argument was logical and supported by the legislative history of the statute.

The Legislature enacted VTL § 1196(7)(f) to address violations of use of a conditional license, increasing the maximum fine allowed from $100 to $500, keeping the maximum prison term limited to 15 days, and revocation of the conditional license. The Court held the amendment made such violations a more serious traffic infraction, and had it wanted to, the Legislature could have amended § 511 to specifically criminalize what the Defendant did. The majority stated that without a change to the rules, the maximum punishment for driving while violating terms of a conditional license is controlled by VTL § 1196(7)(f).

Judge Graffeo dissented, joined by Judge Pigott, arguing that the District Attorney should have the discretion to charge either VTL § 1196(7)(f) or § 511(3)(a)(i) and that the majority's holding punishes a person who drives drunk with the same penalty as someone who violates his conditional license with a minor infraction. The dissent pointed out that in order to have a conditional license, the Defendant must first have had his license revoked and that any operation of a motor vehicle outside of the terms of the conditional license, should be treated as operation with a revoked license. The dissent goes on to argue that because two different statutes cover the illegal conduct, either one can be used, at the People's discretion, and that the existence of the lesser crime, under VTL  § 1196(7)(f) does not preclude use of  § 511(3)(a)(i). Since the Legislature did not eliminate the higher, class E felony, statute, the People should be able to use it. The dissent argued that the holding allows the Defendant more lenient treatment because he had a conditional license, something they believe the Legislature had no intention of doing when they created the conditional license.  (JMM/LC)

 

Express consent to blood draw does not require arrest

When a defendant expressly consents to a blood draw, the lack of arrest does not make the subsequent taking of blood invalid.  In People v. Centerbar (3d Dept. 1/20/2011), the Defendant was taken to the hospital after his motorcycle crashed, killing his passenger.  At the hospital, the Defendant consent to a blood draw to test for his BAC.  On appeal, he argued that the blood draw was unlawful because the police had not arrested him first.  The Third Department rejected this argument.  The requirements of (1) a valid arrest and (2) a blood draw within two hours of the arrest are only for an application of the state's implied consent law.  "[T]he arrest requirement in the implied consent law, like the two-hour time frame therein … has no application where a driver expressly and voluntarily consents to the administration of a blood alcohol test."

The court went on to conclude that the Defendant's consent was the product of free will.  Although in pain, the Defendant was communicative, not restrained, and not sedated.  The Defendant was fully alert.  The consent was obtained prior to the Defendant's condition deteriorating, which required emergency surgery.  (LC)

AD1 considers suspension notice foundation issue

A defendant’s confrontation right is violated when documentary evidence of a license suspension is admitted without an opportunity to cross-examine the affiant.  

In People v. Abelo (1st Dept. 12/28/2010), Defendant was convicted at a bench trial of Aggravated Unlicensed Operation of a Motor Vehicle 2° (AUOMV2°). An AUOMV2° conviction requires that the People prove that the Defendant had knowledge or reason to know that he was driving with a suspended license.  To satisfy this element, the People introduced suspension notices through the direct examination of a DMV employee.  The employee testified to having worked for the DMV since 2002 and stated that in 1992 and 1993 the DMV mailed the Defendant suspension notices.  On cross-examination, the employee admitted that she could not testify to DMV mailing procedures during 1992 or 1993.  The trial court refused to admit notices from 1993, but admitted a notice from 1992.

On appeal, the Defendant argued that the People were required to produce a witness who was familiar with DMV mailing procedures of the respective periods for cross-examination.  Three First Department justices agreed with the Defendant.  The court reversed the conviction and ordered a retrial.  The court reasoned that a witness without knowledge of the relevant procedures could not lay the appropriate foundation, nor did the witness satisfy the obligation established by the Confrontation Clause.

The court found this error was not harmless, because the evidence also showed that, despite having a suspended license in the early 1990s, the DMV issued him new licenses on several occasions afterwards when he returned to New York after brief stays in other stays.  This indicated that there was less than overwhelming evidence that the defendant knew that his license was suspended, the key issue in the case.

Justice Nardelli joined Justice DeGrasse in dissent.  The dissent disagreed with the majority’s interpretation of the witness' preparation.  They believed that the witness had familiarized herself with the 1992 DMV mailing procedures, but was not familiar with the 1993 DMV mailing procedures.  Thus the dissent would have affirmed the conviction on the ground that the 1992 notice was properly admitted.  The dissent considered the production of the DMV employee as satisfying Defendant’s confrontation right.  (MM/LC)

No six-month breathalyzer calibration requirement

People v. Todd, 38 N.Y.2d 755 (1975), does not impose a bright-line timing rule for calibration of breath-alcohol detection devices.

In People v. Boscic (Ct. App. 11/17/2010), the People appealed a ruling from the County Court where the results of a breath-alcohol detection test were suppressed on the ground that the breath-alcohol detection device had not been calibrated within the six months prior to the test.  The device had been calibrated six months and three weeks prior to use, but the County Court interpreted Todd as setting forth a bright line rule that breath-alcohol detection devices must be calibrated at least every six months.

The Court of Appeals unanimously held that Todd did not set forth a bright line six-month calibration rule.  The court discussed the evolution of breath-alcohol detection devices from the Todd era, 1975, to the modern device used to test the defendant.  The discussion highlighted the improved reliability of the devices.  Additionally, the court noted that regulations have been promulgated by the New York State Department of Health to govern the calibration of these instruments.  The applicable regulation requires annual device calibration unless more frequent calibration is recommended by the device manufacturer.  See 10 N.Y.C.R.R § 59.4(c).  Although the regulation was not in effect at the time the defendant was tested, the court reasoned that the regulation provided guidance for the determination of calibration interval.

In reversing the County Court, the Court of Appeals clarified the admissibility standard for alcohol-breath detection device results.  The court held that the appropriate interpretation of Todd, and thus the appropriate standard for admissibility, was that the People had to demonstrate that the device “was in proper working order at the time it issued the test results in question.” Thus, the court declined the opportunity to set a bright-line rule to determine whether the device was in "proper working order."  (MM/LC)