14 A.D.2d 503 | N.Y. App. Div. | 1961
Memorandum: The record is proeedurally irregular but, in the interest of expediting a final disposition of the case, we have treated the minutes of the hearing which are included in the record as having been submitted by consent at Special Term in lieu of an answer. On the merits, the determination should be annulled. A request by an automobile operator who has been placed under arrest on a charge of driving while intoxicated, that he be given an opportunity to consult with his attorney before submitting to a blood test is a reasonable request and should be honored. The petitioner in this case indicated that he would submit to the test, if his attorney so advised him. He should have been given an opportunity to telephone to his attorney to obtain his advice (People v. Noble, 9 N Y 2d 571). Section 71-a of the Vehicle and Traffic Law was amended by chapter 320 of the Laws of 1954, so as to specifically provide that the driver must be placed under arrest before a request can lawfully be made that he submit to a chemical test. The amendment was adopted to overcome the effect of the decision in Matter of Schutt v. Macduff (205 Misc. 43), holding that the statute in its original form was unconstitutional in that it permitted a police officer to make a request for submission to a blood test without first putting the driver under arrest. The thrust of the amendment is that the police officer must proceed in accordance with the rules prescribed for criminal proceedings (see pp. 52-53). This includes giving the arrested person an opportunity to consult with counsel, if he requests permission to do so (People v. Noble, supra). While everyone is presumed to know the law, a citizen who is in doubt as to his legal duty is not bound to accept a police officer’s word for it. He is entitled to obtain confirmation as to the asserted duty from his attorney before he can be called upon to say whether he would or would not perform the duty. Of course, account must be taken of the fact that the test must be taken promptly if it is to be effective and 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. In the analogous cases of punishment of a witness for contempt for refusal to answer a question or of forfeiture of a public office for refusal of the officer to answer questions concerning the conduct of his office, it is uniformly held that the witness or officer must be given an opportunity to consult with counsel before he can be charged with an unqualified refusal warranting the imposition of the penalty (cf. People v. O’Dowd, 8 A D 2d 468, 472). It should be borne in mind that the license revocation in this case is not based upon driving while intoxicated but upon the alleged refusal to take a test. There was no willful or unqualified refusal. There was merely a request for an opportunity to consult a lawyer. There was therefore no basis for revocation of the petitioner’s license. All concur, except Williams, P. J., and Goldman, J., who dissent and vote to confirm, in the following memorandum: In our opinion, the petitioner’s license was properly revoked. He was asked to take a blood test to determine alcoholic content pursuant to section 71-a of the Vehicle and Traffic Law. He refused to take the test except under certain
