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VTL § 1194(2)(f)

A defendant is arrested for driving while intoxicated. He is not given Miranda warnings. He is given inadequate “refusal” warnings in connection with a request by the police that defendant consent to submit to a chemical “breathalyzer test” for the presence of alcohol in his system. Defendant answers (while videotaped) the inadequate refusal warnings by making several non-responsive but incriminatory remarks in what appears to be a mildly drunken fashion. All concerned agree that evidence of the defendant’s refusal to take the chemical test is barred at trial by Vehicle and Traffic Law (“VTL”) Section 1194(2)(f) because of the inadequate refusal warnings.

A Queens County DWI lawyer said that the open question presented is this: Can the People nevertheless properly present select portions of the videotape at trial in order to prove defendant’s DUI intoxication, provided that the videotape is redacted so as to eliminate those passages that indicate that defendant was asked and refused to submit to the chemical test? Or would the presentation of the redacted videotape at trial violate either 1) the statutory bar against evidence of refusal established by VTL § 1194(2)(f), or 2) defendant’s right against self-incrimination?

It is now well-settled that where a defendant has been properly arrested based on probable cause for the crime of driving while intoxicated, the police may ask the defendant to consent to submit to a chemical test for the presence of alcohol in the defendant’s system, and the defendant has no constitutional right to refuse. This is so because a chemical test does not require defendant to provide evidence of a testimonial or communicative character and therefore does not implicate defendant’s right against self-incrimination.

New York’s Vehicle and Traffic Law sets up a statutory scheme whereby a defendant who has been arrested for driving while intoxicated will not be forced to take a chemical test for alcohol but will face certain adverse consequences if he refuses to take such a test. Section 1194(2)(b) of New York’s Vehicle and Traffic Law requires in substance that a defendant who has been arrested on a charge of drunken driving shall be advised that his (or her) driver’s license will be suspended for refusal to take a chemical test whether or not the defendant is subsequently found guilty of the criminal charge. If the defendant nevertheless refuses to take the chemical test, Section 1194 provides that the test shall not be given but that the police shall immediately prepare a written report of the defendant’s refusal. Upon arraignment on the criminal charge of driving while intoxicated, the defendant’s license will be suspended by the court pending further administrative proceedings regarding the suspension before the Department of Motor Vehicles.

Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.

The Vehicle and Traffic Law permits evidence of defendant’s refusal to be admitted at trial on the theory that such a refusal evinces the defendant’s consciousness of guilt. It has become common practice for defendants to request and for the courts to conduct pre-trial hearings on the issue of the admissibility of a defendant’s refusal to consent to a chemical test. At such a hearing, pursuant to VTL § 1194(2)(f), the People must show that proper “refusal” warnings that advise the defendant of the adverse consequences that will follow a refusal to take the chemical test–were given and that defendant then refused to take the test. These hearings have presented a variety of issues, such as whether complete warnings were given, and whether the translation of the warnings for a non-English speaking defendant was adequate. Where the People do not prove that sufficient warnings were given, evidence of defendant’s refusal is not permitted at trial.

The Court has now reviewed the redacted videotape that the People propose to present at trial. Even a brief review of the People’s proposal leads one to doubt the People’s assertion that they seek to introduce this evidence solely in order to provide the jury with a visual record of the defendant’s appearance and condition. Defendant’s videotaped statements are plainly incriminatory in that defendant repeatedly admits that he was drunk, DWI, and concedes that he was in a car. Moreover, although defendant in his videotaped statements denies that he was driving a car at the moment he was arrested by the police, he does so in a manner that at least strongly suggests that he was indeed driving his car immediately beforehand. Thus it would certainly appear that the People want to introduce the redacted videotape both because it provides a visual record of defendant’s condition and because it contains extremely damaging admissions by the defendant.

Upon analysis, the People have the better end of the argument. The redacted videotape is clearly extremely probative on the issue of intoxication. The tape will allow the jury to judge for itself–rather than relying on the testimony of police witnesses given more than a year after the fact–whether the defendant appeared and sounded DUI shortly after his arrest. And the videotape in its redacted form does not give any indication either that defendant was asked to take a chemical test or that he refused to take such a test.

Defendant is right to raise the concern that, because it is obvious that the videotape has been redacted, the jury may speculate as to what has been deleted from the tape. However there is no good reason to doubt that an appropriate limiting instruction can be fashioned to meet this concern.

Accordingly, the Court finds that the People may present the redacted videotape as evidence at trial without violating VTL § 1194(2)(f)’s bar against evidence of a refusal.

Separate and apart from the question which of the defendant’s statements made on videotape should be barred because they constitute evidence of defendant’s refusal to take the chemical test, this case also presents a distinct question as to whether evidence of defendant’s videotaped statements should be barred on the ground that his right against self-incrimination was violated.

A statement made by a defendant to the police before the commencement of a criminal proceeding may be used by the prosecution at trial so long as it was made voluntarily. A statement will be regarded as involuntarily made where it is obtained through force or through other means that violate defendant’s constitutional right against self-incrimination. Where the defendant’s statements are the product of “custodial interrogation” and the defendant is not advised of what are now commonly known as defendant’s Miranda rights, evidence of those statements will be suppressed as involuntarily made.

Here there is no question that defendant was in police custody at the time he made the statements recorded on the videotape and that defendant was never given Miranda warnings. It is also clear from the videotape itself that defendant was asked a question by the police. Specifically, after first being advised that he was under arrest for driving while intoxicated, defendant was asked whether he would agree to take the chemical test for alcohol. Thus it can plausibly be argued by the defendant that all of defendant’s videotaped statements should be suppressed because they are the product of custodial interrogation undertaken without Miranda warnings.

Thus it appears that defendant made the statements at issue in this case because he was advised by the Spanish language pre-recorded refusal warning that he was under arrest for driving while intoxicated. Where a defendant makes statements in response to being advised of the charges against him, there is no “interrogation” and no violation of his Fifth Amendment rights.

Accordingly, the Court finds that the partial refusal warning that was given to defendant did not constitute interrogation, and that the redacted videotape may therefore be admitted in evidence at trial without violating defendant’s right against self-incrimination.
For all the reasons stated herein, the Court holds that the People may not introduce at trial any evidence of defendant’s refusal to take the chemical test, but the People may nevertheless introduce into evidence at trial the videotape of the defendant in the redacted form they have proposed. The Assistant District Attorney and defense counsel are directed to alert the trial judge at the outset of the trial herein to the need for jury instructions in accordance with this opinion as to the limited use of the videotape and as to the reasons why it has been redacted. Counsels are urged to prepare proposed language for such an instruction for the trial court to consider in advance of the presentation of evidence at trial.

As criminal cases involve the penalty of imprisonment, the lawyers tasked to defend the accused must be smart and cautious in every move he undertakes. Here in Stephen Bilkis and Associates, we have our Queens County Criminal defense attorneys who will defend the accused in every stage of the proceedings and make it a point that the rights of the accused are protected. We also have our Queens County Sex Crimes lawyers who will help the women who were abused by others through sexual means.

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