166 Misc. 2d 260 | Suffolk County District Court | 1995
OPINION OF THE COURT
By notice of motion, counsel for the defendant has made an application which seeks dismissal of this matter; in the alternative, the application seeks suppression of certain evidence, as well as some ancillary relief. The motion, which has been vociferously opposed by the prosecution, is decided as follows:
The issues presented for determination are essentially legal and not factual. Indeed, and at least for the purposes of this application, the underlying facts are not presently in dispute and may be briefly outlined.
The defendant was arrested for "Driving While Intoxicated” at approximately 1:35 a.m. on February 25, 1995. Within an hour of the arrest, he voluntarily submitted to a chemical analysis of his breath after receiving the standard, so-called "refusal warnings” (see, Vehicle and Traffic Law § 1194 [2]), i.e., the anticipated consequences of a refusal to submit to a test.
Against that backdrop, and founded upon claims of "double jeopardy”, the defendant’s instant motion seeks the dismissal of the criminal action. In the alternative, he seeks suppression of the test results, claiming his consent was involuntarily and unknowingly given.
DOUBLE JEOPARDY
With respect to the "double jeopardy” branch of the application, the defendant initially contends "that the suspension and subsequent hardship hearing constituted a separate and independent proceeding which resulted in 'punishment’ to [him].”
The prosecution’s response, based upon a number of grounds, strenuously opposes the application.
Preliminarily, it should be noted that the procedures authorized by Vehicle and Traffic Law § 1193 (2) (e) (7) became effective on November 1, 1994. At this early stage of the statute’s evolution, and beyond purely persuasive authority, there is little case law which can be considered definitive. Indeed, neither the court nor the parties have discovered any mandatory authority which controls the facts of the matter at bar. Therefore, for the purposes of this analysis, and before shifting to the above-indicated standards urged by the defendant, the focus begins with the statutory genesis of the suspension procedure, i.e., Vehicle and Traffic Law § 1193 (2) (e) (7).
That statute, as with all statutes, is not immune from assault but clearly surrounded by a formidable cloak. Indeed, as stated a number of times by our Court of Appeals, "[t]here is a simple, but well-founded, presumption that an act of the Legislature is constitutional and this presumption can be upset only by proof persuasive beyond a reasonable doubt.” (Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358, 370 [1978] [citations omitted].) Any attempt to overcome that presumption is, obviously, an ambitious undertaking; while not offhandedly dismissed, it is also not casually granted.
In an attempt to shoulder that burden, the defendant has framed the issue in the above-indicated two-stepped fashion. That suggestion was, no doubt, a product of the analysis found in Ohio v Gustafson (94 LWUSA 1177 [Mahoning County Ct 1994]), one of the cases he cites as supportive of his application.
As previously indicated, however, no case cited by either side — including the Gustafson decision (supra) — totally controls the instant matter. Moreover, while the defendant’s collection of cases includes a number of Federal citations,
The procedure authorized by this State’s statute is distinct. First and foremost, the issue of initial suspension is addressed by the court and, quite obviously, after commencement of the criminal action; specifically, during the arraignment aspect of the criminal action. Any subsequent proceedings, including but not limited to the "hardship hearing” as well as any final sentencing proceedings, are again conducted by the court and, once again, within the course of the same criminal action. Stated otherwise, the New York procedure visa-vis "DWI’s” embraces a number of proceedings, but all of which flow from, and are parts of, the same criminal action, conducted in and by the same court under the same caption and docket number. While portions of the procedure may be viewed as "different” aspects of one criminal case and might therefore be viewed as "separate proceedings” from each other, they are undeniably within the embrace of the underlying action and are not independent of it.
Nor does this result change because a defendant, preliminarily and prior to the conclusion of the criminal case, might be "punished” while still potentially in jeopardy for the underlying crime. Juxtaposing the analysis to any, typical criminal
Lastly, and so it is abundantly clear, whether in the context of the first or second prong of the proffered two-step analysis, the court is equally disinclined to view the suspension as "punishment”. In so determining, the court has, at the suggestion of the defendant, reviewed the Governor’s Memoranda accompanying his approval of the statute and which has been provided by defense counsel. As noted therein, the legislation was perceived as "balancing the public’s interest in highway safety” with the defendant’s rights and "keeps the potentially dangerous driver off the road.” (Governor’s Mem approving L 1994, ch 312, 1994 McKinney’s Session Laws of NY, at 2972.) In the opinion of this court, the amendment is, therefore, remedial.
Moreover, and as underscored by the prosecution’s response, a review of the suspension authorized by Vehicle and Traffic Law § 510 is instructive as it is suitably analogous to that contained in the new section. The former section, as the People pointedly emphasize, contains a suspension procedure which has been found "remedial” and therefore not a "punishment” by no less than this State’s highest Court. (Matter of Barnes v Tofany, 27 NY2d 74 [1970].) In its determination, the Barnes Court opined that, "suspension or revocation of the privilege of operating a motor vehicle is essentially civil in nature, having
It is of no minor significance that the words of the Barnes decision (supra) were somewhat echoed by the Chief Executive in his Memoranda accompanying the amendment of Vehicle and Traffic Law § 1193 (2).
In view of the Barnes Court’s findings as well as the Governor’s Memoranda’s remarks, and in the absence of controlling authority to the contrary, the same result obtains after analyzing Vehicle and Traffic Law § 1193 (2) (e) (7).
It is, therefore, the determination of the undersigned that the defendant has not satisfactorily met his burden in demonstrating the unconstitutionality of Vehicle and Traffic Law § 1193 (2) (e) (7). On the grounds raised, his motion for dismissal is, therefore, denied in all respects.
SUPPRESSION
As indicated above, the second aspect of the defendant’s motion seeks to suppress certain evidence, viz., the intoxilyzer test results. In this regard, the defendant contends that his consent to the test was involuntarily obtained. In support of this contention, he submits that while he may have been advised of the consequences of a refusal to be tested, he was not advised of the consequences which would follow testing. Otherwise stated, it is the defendant’s contention that because he was merely informed of what would happen if he refused the test, but not what would happen if he submitted to it, his consent was neither knowing nor voluntary. As a result, he demands suppression of the test results.
In opposing the relief requested, the prosecution does not argue with the defendant’s rendition of the preliminary facts; it does, however, steadfastly deny that those facts require suppression.
In simplest terms, therefore, the issue is framed as follows: For purposes of this analysis, there is no contest as to the timeliness of the defendant’s submission to the intoxilyzer nor, of and by itself, the sufficiency of the "refusal” warning. The question presented is: Does the fact that the defendant was not warned of the consequences of submitting to the intoxilyzer render his decision "involuntary” and therefore preclude its admission at trial?
Focusing on this question, it should be initially noted that, as presented, the issue (as with the "double jeopardy” issue
As to those authorities, the analysis begins with the well-established principle that there is no constitutional privilege to refuse testing. (People v Thomas, 46 NY2d 100 [1978].) Notwithstanding that rule, testing has, of course, been the subject of much litigation and clarification. Indeed, in the recent case of People v Atkins (85 NY2d 1007), the Court of Appeals revisited an aspect of the law applicable to testing. As indicated therein, the issue before that Court was the effect of an otherwise "untimely” consent to a blood test. While that case is clearly not determinative vis-a-vis the matter at bar, it is sufficiently instructive. For example, both the majority as well as the dissent of Atkins predicated their respective opinions with abbreviated reviews of the development of the concept of "deemed consent” now codified within the Vehicle and Traffic Law, specifically section 1194 (2). That statute states in relevant part that "[a]ny person who operates a motor vehicle * * * in this state shall be deemed to have given his consent to a chemical test of * * * [his] breath” (id. [emphasis supplied]). As a result, and as succinctly stated by the Atkins dissent, "deemed consent” effectively renders "all testing * * * Voluntary’ or * * * consensual” and "provides the driver with an opportunity to affirmatively withdraw that consent, upon being informed of the consequences of that withdrawal” (People v Atkins, supra, at 1011 [Simons, J., dissenting]).
With respect to the instant matter, the defendant — as an operator of a motor vehicle in this State — was deemed to have consented to testing with but one caveat: just prior to testing, he must be advised of the consequences of a withdrawal of his consent and afforded the opportunity to "affirmatively” do so. He was so advised; he chose not to withdraw his consent. That was sufficient to satisfy the law. To add a further element, i.e., that a driver be required to reaffirm his previously given consent, with or without a warning of the consequences, is to misstate the law.
Furthermore, and if, arguendo, the defendant were accurate in his contention that a "knowing” and "voluntary” consent to be tested can only follow a warning of the consequences, it would follow that he would, presumably, also have to be ad
Moreover, as indicated, "impaired” and "intoxicated” are distinguished by mere fractions of percentages. On countless occasions, courts have heard the testimony of trained and experienced police officers who initially and fully expected a test to demonstrate "intoxication” but witnessed tests which supported no more than "impaired”.
To expect the typical, layperson and perhaps totally inexperienced driver
Similarly, a bare-bones warning (i.e., "If you submit to the test, any reading of .10 or above may result in license suspension”) might prove equally unsatisfactory. While comparatively simple and somewhat staightforward, it not only does not address all of the options, but it still assumes the lay driver
It is, therefore, the finding of the undersigned that, under the facts as presented, the defendant operated a motor vehicle in this State; he therefore consented to the test. Thereafter, he was given warnings consistent with the existing law as well as the opportunity to revoke his consent; he chose not to avail himself of that opportunity and voluntarily submitted to the test. Accordingly, the defendant’s application for suppression of the test results is denied in all respects.
. Parenthetically, but of importance to the defendant’s suppression demand, it should also be noted that neither side alleges nor implies that the defendant was advised of any of the consequences that might follow consensual submission to a test; for the purposes of this motion, it is therefore assumed that no such advice was given.
. The third "business day” following his arrest. (See, Vehicle and Traffic Law § 1193 [2] [e] [7] [e].)
. In view of the fact that the defendant’s motion attacks the constitutionality of Vehicle and Traffic Law § 1193, he also sought an order pursuant to Executive Law § 71 inviting the intervention of the Attorney-General of New York State. That order was issued by the undersigned but, by letter dated March 17, 1995, Andrea Green, Deputy Solicitor General, Appeals and Opinions, indicated that the Attorney-General did not intend to intervene.
. Affidavit of Kevin J. Cummings, Esq., Mar. 7, 1995, at 2.
. Department of Revenue of Montana v Kurth Ranch, 511 US —, 128 L Ed 2d 767 (1994); Austin v United States, 509 US 602 (1993); United States v Halper, 490 US 435 (1989).
. Affidavit of Kevin J. Cummings, at 3-4.
. See, n 4.
. Presumably, this information would be accessible to law enforcement personnel; but it would be needed within the typical testing period of two hours. (Vehicle and Traffic Law § 1194 [2] [a] [2].) To expect compliance with that second requirement is, at best, overly optimistic.
. Ibid.
. Who, parentically, may or may not be under the influence of alcohol.