11 N.Y.2d 58 | NY | 1962
Concurrence Opinion
Petitioner-respondent was placed under arrest on a charge of driving while intoxicated and taken to a State Police substation where he was asked to submit to a blood test. Under the statute (Vehicle and Traffic Law, § 71-a, as it then was, now §§ 1192-1194) he could be required to choose whether or not to submit to a test to determine the alcoholic content of his blood, while under arrest if the officer had probable cause to believe him to have been driving while intoxicated. His operation of the vehicle upon the highways of the State is deemed to constitute a consent—not that the blood test be taken, but to being obligated to make a choice whether to take the test or to refuse to take the test. If the driver refuses to take the test the statute provides that his operator’s license shall be revoked.
Under the facts as found by the Appellate Division, this man, after he had been arrested and brought to the substation, asked permission to telephone to his lawyer before deciding whether to submit to the test, but was told that he could not consult
The Appellate Division held that he had a constitutional right to consult with counsel provided that he did so promptly, and that refusal to permit him to do so deprived the Commissioner of Motor Vehicles of power to revoke the license. That was on the theory that he was under arrest on a criminal charge and that due process of law required that he have opportunity to consult counsel, citing People v. Noble (9 N Y 2d 571, 574-575).
The soundness of that reasoning depends upon whether respondent was applying to consult counsel before taking some step in a criminal prosecution (People v. Noble, supra; People v. Di Biasi, 7 N Y 2d 544; People v. Marincic, 2 N Y 2d 181; People v. Banner, 5 N Y 2d 109; People v. Cooper, 307 N. Y. 253; People v. Tomaselli, 7 N Y 2d 350; People v. Silverman, 3 N Y 2d 200; People v. Hamnigan, 7 N Y 2d 317; People v. Spano, 4 N Y 2d 256, revd. 360 U. S. 315; Culombe v. Connecticut, 367 U. S. 568; Hudson v. North Carolina, 363 U. S. 697).
By the same token it seems to me, as it did to the Appellate Division, that it was in violation of due process of law as part of a criminal prosecution to have refused respondent opportunity to telephone to his lawyer. The Appellate Division’s opinion stated that “ an unreasonable delay need not be countenanced. In this case, there is nothing to show that the attorney could not have been reached by telephone promptly. ’ ’ Due process of law is a concept which varies according to the context, but the substance of it is ‘ ‘ ingrained in our national traditions ” and “ Fairness of procedure is ‘ due process in the primary sense.’ Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 681.” (Anti-Fascist Committee v. McGrath, 341 U. S. 123,161.) Bearing in mind, as is further said in the case just cited in the concurring opinion by Mr. Justice Frankfurter (p. 162), that due process ‘ is not a technical conception with a fixed content unrelated to time, place and circumstances ”, and representing, as that opinion states, “ a profound attitude of fairness between man and man, and more particularly between the individual and government,” it seems to me clear that the substance of this important but flexible constitutional safeguard required that respondent, having been arrested on a criminal charge,
In this instance respondent did not take the test and was acquitted of the criminal charge. Having been acquitted, he is not in position "to complain that he was injured in the criminal action. Therefore, as I view it, the dissenting Justices at the Appellate Division were correct in concluding that the revocation of his license by the Commissioner of Motor Vehicles is to be regarded as though it were done in a civil administrative proceeding. The right to counsel mandated by due process of law is confined to the criminal prosecution which terminated in his favor.
For these reasons I concur in the reversal of the order appealed from and the reinstatement of the determination of the Commissioner of Motor Vehicles revoking respondent’s operator’s license. Whether any constitutional rights of respondent would have been violated if the case were here on appeal from a judgment of conviction of driving while intoxicated, after submitting to a blood test administered without suitable opportunity promptly to. consult with counsel, is not presented by this record.
Chief Judge Desmond and Judges Dye, Fuld, Froessel and Foster concur in a memorandum; Judge Van Voorhis concurs in a separate memorandum in which Judge Burke concurs.
Order reversed and determination of the Commissioner of Motor Vehicles reinstated, without costs.
Lead Opinion
The order appealed from should be reversed and the determination of the Commissioner of Motor Vehicles revoking the operator’s license of petitioner reinstated, without costs. So far as the revocation of petitioner’s license for his conditional refusal to take a blood test is concerned, the constitutional rights of petitioner were not invaded because of the refusal of his request for counsel.