Published on:

Two Hour Rule of VTL § 1194(2)(a)

A New York DWI Lawyer said that, this court now holds that in this prosecution of Vehicle and Traffic Law (“VTL”) section 1192 for operating a motor vehicle while impaired or intoxicated by alcohol, upon objection of the defense, the prosecution must establish, at a hearing by expert testimony, scientific evidence that a Blood Alcohol Content (BAC) test taken more than two hours after the arrest of the defendant is competent, reliable and probative of the fact that the defendant was impaired or intoxicated when he operated a motor vehicle before such results may be admitted as relevant evidence at the trial.

A New York DWAI Lawyer said that, recently, the Court of Appeals allowed a BAC test for drugs to be admitted into evidence when the defendant consented to take the test within two hours of arrest, and where the test was actually administered two hours and twenty-eight minutes after the arrest. More recently the Judge denied a motion to suppress the results of a BAC test administered after two hours, and held that Atkins eliminated the Two Hour Rule when a defendant expressly consents to take the BAC test. However, the Judge stated that it was unclear whether Atkins only applies where the defendant consents to take a BAC test within two hours of arrest. Both Judge and this court believe that the Court of Appeals in Atkins has created more questions than answers to the VTL § 1194 Two Hour Rule. Hence a review of the Two Hour Rule is appropriate to understand and place Atkins in its proper perspective.

The issue in this case is whether court erred in suppressing the results of the Breathalyzer test.
Under VTL § 1194.2 and the New York State Department of Health Regulations regarding the administration of blood and breathalyzer tests it is mandated that the BAC test shall be administered within two hours of arrest. The Two Hour Rule actually benefits the prosecution in that it creates a presumption that the BAC test results are admissible. Absent such a rule the prosecutor would need to establish by expert testimony the scientific relevancy of the test in every drunk driving prosecution. Since the Court of Appeals in Atkins will allow evidence of a BAC test taken more than two hours from arrest to be presented in a trial, the People lose their presumption of the scientific reliability beyond two hours from DUI arrest and must now establish same at a pre-trial hearing.

Prior to the Court of Appeals in Atkins all of the Appellate Divisions and the various trial courts have rendered numerous disparate published decisions regarding the interpretation of the Two Hour Rule. Despite the conflicting views the Court of Appeals in Atkins a 4-3 majority memorandum decision sheds little guidance on the interpretation of the Two Hour Rule. Only the dissent discusses the issues. In affirming the unreported decision of the First Department Appellate Term’s affirmance of an unreported New York County Criminal Court decision, the Court of Appeals relied upon.

The trial court held that “the requirements of the Vehicle and Traffic Law § 1194 are not relevant and therefore the test results will only be admissible if obtained with the defendant’s consent or pursuant to a court order”. The trial court then held that Criminal Procedure Law section 60.75 imposed a “requirement that an individual be separately charged with a violation of before the more lenient requirements of will be applied to the use of the test results on the trial of the Penal Law charges”. As a result the trial court only held a hearing on the issue of whether the defendant’s consent to the removal of his blood was knowing and voluntary under the circumstances in which it was given.

In short, the case was not about interpreting the proper use of the Two Hour Rule of Vehicle and Traffic Law section 1194. In fact, the trial court never made a finding as to how long after the arrest the chemical test was given to the defendant or if the test was offered or given more than two hours after arrest. The Appellate Division, Third Department has reached opposite conclusions with two different panels, one panel holding the test results not be admissible and another more recent panel, following Mills, supra, held that the People had no duty to prove that it is worth noting that the Court of Appeal’s in its recent Atkins decision does not even cite the Mills case nor does it address the conflict within the Departments on the Two Hour Rule.

In order to have some consistency and reliability, evidence should not be admissible, regardless of waiver or consent, if it is not probative, competent or relevant, i.e., scientifically acceptable. The criminal law as developed by the Legislature in Vehicle and Traffic Law section 1194 and in the N.Y.S. Health Department Regulations is that a BAC shall be given two hours from arrest. This standard, albeit an artificial one, should not mean two hours and twenty-eight minutes or two hours and forty-one minutes. Nor should the rule allow the courts to disregard the thirty-nine minutes a defendant sat in a police car after an accident, albeit “voluntarily” before being “arrested” thereby extending the time to two hours and thirty-nine minutes as the Forth Department allowed in It should be noted however, also involved an accident and a death, but the defendant was only convicted of Driving While Intoxicated under the VTL. Again, hard facts make bad law.

Consent to taking a test which may lead to unscientific results should not make the test results competent or relevant. Courts should determine that such unscientific evidence is irrelevant and thereby should not be admitted into evidence at trial. Gamesmanship by the police, prosecutors, defense attorneys and even the courts should not override the legislatively mandated rule of two hours from arrest which arguably is based upon some scientific rationale.

A review of the scientific rationale and the legislative history of this section might lead courts to a different, more rational, conclusion. Namely, that stale test results may not be competent evidence, or that bad science makes bad law. New York unlike the federal criminal courts still follows the “Frye” test in dealing with the issue of whether evidence is scientifically reliable. “While foundation evidence concerns itself with the adequacy of the specific procedures used to generate the particular evidence of DUI to be admitted, the test pursuant to poses the more elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.

The courts routinely accept evidence of the BAC of a person at the time of the test. Additionally, the Breathalyzer test has been in public use since 1954 and has been widely accepted and adopted by law enforcement agencies for use in testing BAC. The BAC test clearly is the most important single piece of evidence from which the condition of the person at the time of the incident will be inferred. The court holds a special duty to ensure that evidence of such a “conclusive” nature is not shown to the trier of fact unless it is certain that the test results are competent evidence. “The longer the delay between the time of the incident and the sample collection, the more difficult it becomes, scientifically, to draw reasonable inferences from one ‘data point,’ back to the ‘driving’ time”.

This court believes that there is ample scientific evidence that the delay between the time of the arrest and the time the chemical test for DWAI is given might significantly reduce the reliability of the evidence if that time period is too great. Our Legislature determined that as long as the test was given within two hours of the arrest then the results would be competent evidence. If courts extend this time period under the guise that the defendant was not “arrested” for a substantial period of time after a stop or accident and then hold that the Two Hour Rule only applies to cases where the defendant has not consented to take the test, then courts would be receiving evidence that may not have an adequate scientific basis. Hence the chance of prejudicing the defendant might outweigh any probative value of the evidence and therefore should not be admitted into evidence.

The Legislature adopted the Two Hour Rule in VTL 1194(2)(a) to assist prosecutors in prosecuting drunk driving charges by eliminating the requirement of proving the scientific reliability of a BAC test in every prosecution. Therefore, a BAC test taken within two hours from arrest may be relevant evidence on the issue of intoxication at the time of driving. While two hours from the time of arrest may have been an arbitrary rule, it has some scientific rational to sustain it. A more scientifically relevant rule may be to extend the Two Hour Rule to perhaps three hours from the operation of a motor vehicle, but that is not the law. Only the Legislature may change the Two Hour Rule of VTL § 1194(2)(a).

In view of the Court of Appeals decision in Atkins admitting evidence of a BAC test taken after two hours from arrest which was consented to within two hours of arrest, this court will not suppress the BAC test results taken after two hours from arrest at this time. However, since the BAC test was consented to and administered more than two hours from arrest, the People will not be entitled to the statutory presumption of VTL § 1195.1 that BAC tests properly administered pursuant to VTL § 1194 will be admitted into evidence.

Instead, the People must now prove at a hearing by expert testimony the scientific reliability of such BAC test administered more than two hours from arrest. Moreover, the People must also establish by clear and convincing evidence that the defendant who consented to take the test more than two hours from arrest, did so in a voluntary manner.

The VTL mandates that “every person operating a motor vehicle which has been involved in an accident shall, at the request of a police officer, submit to a field breath test” (VTL § 1194.1[b] If the field test indicates that the operator has consumed alcohol then the police may direct that the operator submit to a chemical test pursuant to Vehicle and Traffic Law section 1194.2(a) which provides that: any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test administered by or at the direction of a police officer (1) [who has reasonable grounds to believe that the operator was operating a motor vehicle under the influence of drugs and is given] within two hours after such person has been placed under arrest or (2) within two hours after a field Breathalyzer test.

Accordingly, the court held that, in view of the Court of Appeal’s 4-3 split decision in a 1995 case decision, this court upon the application of the People has reconsidered its decision of June 6, 1995 which suppressed the results of a Breathalyzer test, and hereby sets it aside.
Under VTL § 1194.2 and the New York State Department of Health Regulations regarding the administration of blood and Breathalyzer tests it is mandated that the BAC test shall be administered within two hours of arrest.

If there has been a violation of this rule seek the assistance of a New York DWI Attorney and New York Drug Crime Attorney at Stephen Bilkis and Associates.

Posted in:
Published on:
Updated:

Comments are closed.

Contact Information