People v. Finnegan

Citation85 N.Y.2d 53,623 N.Y.S.2d 546,647 N.E.2d 758
Parties, 647 N.E.2d 758 The PEOPLE of the State of New York, Respondent, v. David S. FINNEGAN, Appellant.
Decision Date16 February 1995
CourtNew York Court of Appeals

Kunstler & Kuby, New York City (William M. Kunstler, of counsel), for appellant.

R. Michael Tantillo, Dist. Atty. of Ontario County, Canandaigua (John G. Herriman, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

Prior to his jury trial in the Town Court of Victor, defendant moved to suppress the otherwise valid results of a consensual breathalyzer test, claiming that his statutory right to an additional, independent test was violated. Defendant had been arrested for driving while intoxicated. After being transported to the police station, he consented to a breathalyzer test being administered and requested an additional blood test upon being advised of his statutory right.

The issue on this appeal is whether Vehicle and Traffic Law § 1194(4)(b), which promulgates the defendant's right to an independent chemical test, also imposes an affirmative duty on the police to assist an arrested individual in obtaining an independent chemical test. We conclude that defendant's statutory right to the opportunity to obtain an independent test was not violated. Thus, we affirm the County Court order upholding defendant's conviction in the Town Court.

At approximately 2:30 A.M. on July 4, 1991, an Ontario County Deputy Sheriff, responding to a call of criminal mischief, observed a vehicle on Willis Hill Road in the Town of Victor. The officer testified that the car's headlights were not on and its right-hand tires "were just off the curb onto the stone." When the officer stopped to check out the situation, he noticed defendant walking toward the vehicle. Defendant told the officer that he had driven the car and parked it at that spot in order "to put something in his friend's mailbox." When the officer placed his hand near the radiator of defendant's parked car, that part of the car felt "hot." The officer concluded that the car had recently been driven. Defendant was questioned and admitted to drinking a beer and driving the car.

Because the officer smelled alcohol on defendant's breath and noticed that his eyes were bloodshot, the officer asked defendant to perform a series of field sobriety exercises. Defendant failed four basic skills. After making further observations of defendant's demeanor and appearance, the officer concluded that defendant was intoxicated and placed him under arrest for driving while intoxicated. Defendant was handcuffed and taken in a police vehicle to the police station. After being read his Miranda rights, defendant next agreed to provide a breathalyzer sample. Before administering that test, the officer informed defendant of his right also to "have an independent blood test at his own expense." The official breathalyzer test was performed by a certified operator and reflected a .15% alcohol level in defendant's blood. The test was conducted at 3:42 A.M., within the two-hour time period required by statute (see, Vehicle and Traffic Law § 1194[2][a][1]; People v. McGrath, 135 A.D.2d 60, 61, 63, 524 N.Y.S.2d 214, affd. 73 N.Y.2d 826, 537 N.Y.S.2d 480, 534 N.E.2d 318). Because defendant repeatedly stated to the police that he intended to leave the jurisdiction, he was immediately arraigned and bail was set at $500 cash or $1,000 bond. Defendant was unable to post bond until the afternoon of July 4.

Two weeks prior to trial, defendant submitted an affidavit to the Town of Victor Court in which he stated that: "After I submitted to the breathalyzer test I requested that the police permit me to obtain an independent blood test from a physician of my choosing. * * * The police did not assist me in arranging for an independent blood test, and I was unable to obtain such a test within a reasonable and relevant period of time." The trial court denied defendant's request for a pretrial hearing with respect to his motion to suppress the consensual, official breathalyzer test results. Defendant was tried and convicted by a jury of driving while ability impaired (Vehicle and Traffic Law § 1192[1] and driving while intoxicated (Vehicle and Traffic Law § 1192[2]. Ontario County Court, as the intermediate appellate court, affirmed the conviction and held that the police had no affirmative duty to arrange for or implement defendant's request for an independent chemical test or to transport the defendant to a person or place where an independent test could be performed. A Judge of this Court granted leave to appeal, 83 N.Y.2d 852, 612 N.Y.S.2d 383, 634 N.E.2d 984.

Defendant claims that the otherwise unchallenged official breathalyzer test results should have been suppressed because he was denied his statutory right to secure an independent blood test. Specifically, defendant asserts that the police have affirmative duties, which are concomitant with defendant's statutory right to seek an independent test (see, Vehicle and Traffic Law § 1194[4][b]. He would add an official obligation to assist defendant in obtaining an independent blood test. He charges that the enlarged duty was breached in this case (citing People v. Batista, 128 Misc.2d 1054, 491 N.Y.S.2d 966). We note that there appears to be no dispute that defendant was advised of the statutory right and, thus, find it unnecessary to decide whether the advisory prong should be added by judicial interpretative mandate. We proceed also on the assumption (though there is some factual, evidentiary dispute) that defendant asked generally to secure the independent test and for police assistance.

The whole of Vehicle and Traffic Law § 1194(4)(b) is: "Right to additional test. The person tested shall be permitted to choose a physician to administer a chemical test in addition to the one administered at the direction of the police officer." Defendant asks that the Court interpretatively add to these words requirements for the police to assist defendant in obtaining an independent test, if one is requested. Defendant specifies at least three additional obligations not expressly prescribed in the statute: (1) the police must give notice of the right to the independent test; (2) the police must transport defendant to the doctor or hospital where the additional test would be performed or presumably arrange for an independent physician or technician to make a precinct call; and (3) the police must obtain the independent test within two hours of defendant's arrest. Failure to comply with these interpretive add-ons, defendant argues further, should result in suppression of the unchallenged, consensual, valid and untainted breathalyzer test results.

The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory "language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words" used (People ex rel. Harris v. Sullivan, 74 N.Y.2d 305, 309, 546 N.Y.S.2d 821, 545 N.E.2d 1209, citing Doctors Council v. New York City Employees' Retirement Sys., 71 N.Y.2d 669, 675, 529 N.Y.S.2d 732, 525 N.E.2d 454; Patrolmen's Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338). Equally settled...

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