107 A.D.3d 4
N.Y. App. Div.2013Background
- Defendant was arrested for driving while intoxicated after a fatal collision and transported to police headquarters for a chemical breath test (BAG).
- Defendant signed a consent form to submit to BAG at 3:30 a.m.; breath drawn at 3:39 a.m. during ongoing investigation.
- Mayol, defendant’s family attorney, contacted police at 3:31–3:32 a.m. claiming representation and later spoke until 3:39 a.m.; police did not notify defendant that counsel had appeared.
- The suppression hearing showed no testimony from the initial officer who spoke with Mayol; a second Mayol call occurred at 4:33 a.m.; no direct talk with the defendant occurred.
- Supression court suppressed the BAG results, concluding a violation of the defendant’s state constitutional right to counsel, given counsel’s appearance was known but not disclosed.
- The majority held that when police know counsel has appeared, they must reasonably notify the motorist of counsel’s appearance if feasible without delaying the test; failure to notify required suppression of BAG results.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the state right to counsel attaches before BAG testing | Gursey/Smith indelible right applies once attorney appears | Indelible right extends to pre-test stage and requires notification | Yes; right to counsel attaches and requires notification when feasible |
| If counsel has appeared, must police notify motorist of counsel’s appearance before testing | Police must enable contact and not unduly delay testing | Police may be excused if notification risks delay | Yes; notification required if feasible and not substantially interfering |
| Does failure to notify mandate suppression of BAG test results | Unnotified appearance taints testing and outcomes | No automatic suppression absent proof of interference or request to reach counsel | Yes; BAG results suppressed where failure to notify counsel occurred and test commenced after counsel appeared |
Key Cases Cited
- People v Gursey, 22 NY2d 224 (NY 1968) (limited right to counsel before testing; access must not be unduly delayed)
- People v Garofolo, 46 NY2d 592 (NY 1979) (indelible right to counsel when counsel enters custody case; suppression for delays)
- People v Shaw, 72 NY2d 1032 (NY 1988) (no constitutional right to counsel pretest; limited statutory right may exist)
- People v Smith, 18 NY3d 544 (NY 2012) (limited right to counsel before responding to testing; police not required to notify generally)
- People v Pinzón, 44 NY2d 458 (NY 1978) (procedural context for access between attorney and client in custody)
- People v Meytin, 30 Misc 3d 128[A] (NY Misc. 2010) (attorney called and advised; absence of direct request to speak without harm to delay)
- People v Pfahler, 179 AD2d 1062 (NY App. Div. 1992) (distinguishes limited right to counsel before testing based on facts)
- People v Mor a-Hernandez, 77 AD3d 531 (NY App. Div. 2010) (pretest attorney contact considerations)