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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.

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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