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Defendant Contends Breathalyzer Test was Impropr


On May 6, 1995 at approximately 1:30 AM, a police officer was assigned to a so called DWI checkpoint in Queens County. A New York Criminal Lawyer said that pursuant to the procedures established for this checkpoint, every vehicle was stopped and every driver was asked if he or she had been drinking. If the driver answered affirmatively, he or she was asked to submit to an alcohol-sensor field sobriety test. At about 1:30 AM, the accused man entered the checkpoint area and in response to the officer’s question indicated that he had been drinking. At this time, the accused exhibited the classic signs of intoxication, slurred speech, bloodshot watery eyes, an odor of alcohol and unsteadiness on his feet. The accused agreed to submit to an alcohol-sensor test and the results indicated a blood alcohol content of 0.15 of one percent. This test was re-administered to the accused approximately nine minutes later with identical results and he was then arrested and taken to the 114th Precinct where pedigree information in connection with the arrest was taken. While en route to the precinct, the accused asked the officer what was going to happen. The officer told the accused man that he would be given a breathalyzer test and that if his blood alcohol content registered 0.06 of one percent or less, that he would be released; that if he refused to submit to the breathalyzer test that his license would be revoked; that if he took the breathalyzer test and his blood alcohol content registered 0.10 of one percent or greater, that his license would be suspended. A similar exchange of information between the officer and the accused man took place at approximately 4:15 AM, immediately before the accused man took the breathalyzer test. Thereafter, the accused was transported to the Intoxicated Driver Testing Unit at the precinct. It was here that the officer advised the accused of his Miranda rights prior to questioning him from the IDTU questionnaire. Each and every Miranda warning was given and acknowledged by the accused who voluntarily agreed to answer questions.

A Manhattan Criminal Lawyer said that at some point after the IDTU questionnaire was completed by the officer, the accused was asked if he would submit to a breathalyzer test. Once again, the three alternatives described above were stated to the accused by the officer. The accused, without any apparent hesitation or protest, took the breathalyzer test at 4:15 AM. The results showed 0.09 of 1% of alcohol in the blood. The complainant concedes that the breathalyzer examination was administered more than two hours from the accused man’s arrest. The complainant concedes that notice of this statement was never provided to the defense counsel pursuant to CPL (Criminal Procedure Law).

Accordingly, the stop of the accused was proper. The officer request that the accused submit to an alcohol-sensor test was proper in view of the accused man’s response to the officer’s preliminary inquiry. The alcohol-sensor results provided probable cause to arrest the accused man of DWI.

With respect to the statements attributed to the accused, those memorialized in the IDTU questionnaire were freely and voluntarily made following the full administration and acknowledgement of the Miranda warnings. Accordingly, the statements are admissible. With respect to the statement attributed to the accused while being transported from the precinct to the Central Booking facility, the complainants are precluded from introducing the statement at trial. The statement was not contained with the requisite specificity in the CPL notice and good cause for the failure to do so was not provided.

Whether chemical test results should be admissible at trial when the test was administered after two hours of arrest, was recently addressed by the Court of Appeals. The court apparently held that when an accused expressly and voluntarily consents to submit to a chemical test that the so called two hour rule of Vehicle and Traffic Law is inapplicable. It is unclear whether the holding will be limited to the facts presented (consent to submit to the test within two hours of arrest–administration of the test after two hours of arrest) or whether, as the dissent strongly suggests, this holding will apply to all situations where an individual expressly consents to take a chemical test regardless of when the consent occurs. It appears to me that the majority decision has, in effect, written out of Vehicle and Traffic Law the two hour rule in cases of express consent.

While the decision resolves an issue that has spawned much litigation in the local criminal courts throughout the state in recent years, it invites litigation in areas that arise daily in our courts. In examining the procedures contained in Vehicle and Traffic Law in relation to the current case law, a traditional Fourth Amendment analysis of consent searches/seizures is inapplicable to situations where a chemical test is consented to after two hours of arrest.

It seems clear that the taking of a breath sample, as was done here, is a search within the meaning of the Fourth Amendment. However, in exchange for the privilege of being licensed to drive in this state, every motorist in this state is deemed to have given advance consent to submit to such a search when certain conditions precedents are present. Since the privilege to drive is statutorily created concomitantly with a deemed consent provision, there is no constitutional right for an individual driver in this state where the conditions precedent in Vehicle and Traffic Law are present, to refuse to submit to a police requested chemical test. Accordingly, since a statutory rather than a constitutional right is implicated in this type of case, it is not necessary to establish an express and voluntary consent beyond a reasonable doubt.

It is clear that consent involves a person’s knowing choice from all of the factors present in each case. Factors for the court’s consideration in determining whether consent was present in relationship of the characteristics of the accused and details of the interrogation, including the age and intelligence of the accused, the administration of the Miranda warnings, the length of the detention, physical threats, abuse or isolation, reliance upon false promises and the manner itself in which the consent occurred, that is, a reluctant, limited consent or a self prompted spontaneous consent.

In the context of VTL breathalyzer cases, there is no obligation to advise an individual of any rights prior to the administration of a breathalyzer test. There is no obligation to inform an individual of any right to refuse to submit to a breathalyzer test. By logical extension through Atkins then, there is no obligation on the part of law enforcement officials to advise a suspect of anything regarding the administration of a breathalyzer test even when the request to submit to a search test occurs beyond two hours of arrest. Thus, it appears to me that a simple request to submit to a breathalyzer test without more, can result in a voluntary consent as long as there is no express or implied coercion by law enforcement officials, no material misrepresentation of fact, to induce the consent and no facts to suggest that any law enforcement officials in securing an individual’s consent acted in a manner so fundamentally unfair as to constitute a due process violation as to negate any consent.

I hold that to establish express and voluntary consent the burden is upon the prosecutor to establish consent by clear and positive evidence. Once this burden is shouldered by the complainant, the accused man must bear some burden in negating consent. This can be accomplished either through the cross examination of the complainant’s witnesses or the presentation of a defense case. Applying these principles to the facts of this case the complainant has met their burden of establishing the accused man’s consent by clear and positive evidence.

Although the accused man’s consent occurred in a custodial environment, the atmosphere was not overbearing on his will. The accused was not handcuffed; the accused actually appears to have initiated conversations with the officer on two to three occasions during this episode. The accused man’s degree of intoxication or impairment was not so extreme as to render him incapable, by virtue of intoxication, from understanding the nature of the events or from forming intent to consent to the administration of the examination. From all of the circumstances presented, there was a voluntary consent to submit to the breathalyzer examination. The results of this test are admissible.

When we agree to submit ourselves to test, we should be prepared for whatever the outcome may be. Tests should help us to find out if there is something wrong with us so we can act on it. However, submitting ourselves to tests should be willful. If you were forcibly submitted to do a DWI related test, consult the Bronx DWI Lawyer to find out your legal options. Stephen Bilkis and Associates can also provide you skilled legal counsel whether you have been charged with sex crimes,drug possession or theft.

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