People v. Steves

117 Misc. 2d 841 | Webster Justice of the Peace Court | 1983

OPINION OF THE COURT

C. Benn Forsyth, J.

The defendant was charged with violation of section 1193-a of the Vehicle and Traffic Law for failure to take a so-called screening test. The facts are not in dispute. The defendant was arrested upon this charge and a charge of speeding. The court finds there was adequate cause to require a screening test under section 1193-a. The defendant refused to take the screening test and was given the ticket in question. The issue is whether or not a violation of section 1193-a is an infraction. The section has no punishment included.

The Court of Appeals has decided that there is no constitutional right to refuse to take an alcoholic test {People v Thomas, 46 NY2d 100). Section 1193-a requires no “commissioner warnings” to the effect that failure to take the test may result in a penalty. It is clear that the Legislature did not intend to permit a motorist to decline to take this test, if the proper circumstances were present. The court holds that the Legislature has placed upon the driver a constitutionally valid obligation. The failure to comply is as much a violation of this law as speeding or disobeying any other traffic law.

The remaining issue is whether the failure to specify the penalty prevents criminal enforcement. Section 1193-a does not state that the failure to take the test is a traffic infraction. However, section 1800 of the Vehicle and Traffic Law states that it is a traffic infraction (unless a misdemeanor is specified) for any person to violate any of the provisions of the Vehicle and Traffic Law. The court finds that this is a proper exercise of legislative authority and the provisions of section 1800 are incorporated into section 1193-a. The two sections together describe the offense and punishment. The court, therefore, finds the defendant guilty and sets the matter down for sentence on March 2, 1983 at 7:00 p.m.