MATTER OF SCHUTT v. MacDuff

• Decision Date: 02 January 1954
• Citation: 205 Misc. 43
• Parties: In the Matter of Louis E. Schutt, Petitioner,<BR>v.<BR>James F. Macduff, as Commissioner of Motor Vehicles, Respondent.
• Court: New York Supreme Court

205 Misc. 43

In the Matter of Louis E. Schutt, Petitioner,

v.James F. Macduff, as Commissioner of Motor Vehicles, Respondent.

January 2, 1954.

J. Allan Ballman for petitioner.

Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Ruth Kessler Toch and Philip J. Fitzgerald of counsel), for respondent.

EAGER, J.

This is an article 78 proceeding brought against the Commissioner of Motor Vehicles by one Louis E. Schutt to annul a determination of the commissioner revoking the motor vehicle driver's license of the petitioner. The license was revoked by the commissioner for the alleged refusal of the petitioner to submit to a blood test as demanded by a police officer following his arrest for driving while intoxicated. The commissioner, in revoking the license, acted under the authority of the provisions of section 71-a of the Vehicle and Traffic Law (L. 1953, ch. 854), said section reading as follows: "§ 71-a. Chemical Tests 1. Any person who operates a motor vehicle or motor cycle in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood provided that such test is administered at the direction of a police officer having reasonable grounds to suspect such person of driving in an intoxicated condition. If such person refuses to submit to such chemical test the test shall not be given but the commissioner shall revoke his license or permit to drive and any nonresident operating privilege. 2. Upon the request of the person who was tested, the results of such test shall be made available to him. 3. Only a duly licensed physician acting at the request of a police officer can withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of a urine, saliva or breath specimen. 4. The person tested shall be permitted to have a physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer."

It appears from the petition that, for upwards of thirty-eight years prior to August 17, 1953, the petitioner was duly licensed as a driver of motor vehicles in the State of New York. On August 10, 1953, he was arrested on the public street in the city of Middletown, N. Y., by a police officer without a warrant for the crime of operating a motor vehicle while in an intoxicated condition, in violation of subdivision 5 of section 70 of the Vehicle and Traffic Law. He was then forcibly taken by the officer to the city police headquarters, where, after being booked upon the above-mentioned charge, he was requested by the police officer to go to a hospital and submit to a "blood test" for the purpose of determining the alcoholic content of his blood. The petitioner alleges that he refused to submit to such test. On August 11, 1953, he was arraigned in the City Court and after entering a plea of not guilty, the proceeding was adjourned. Prior to the trial of the said criminal proceeding, and on or about August 20, 1953, the petitioner received a written order from the commissioner, dated August 17, 1953, revoking his driver's license pursuant to said section 71-a, for the following cause: "Refused, on 8/19/53, at Middletown, N. Y. to submit to a chemical test for the purpose of determining the alcoholic content of his blood."

The said order which directed the immediate surrender of petitioner's driver's license was immediately complied with, although petitioner advised the Commissioner of Motor Vehicles in writing that neither the validity of section 71-a nor the legal power of the commissioner to revoke the license was conceded, and the petitioner particularly objected to the revocation upon the ground that it deprived him of his license without a hearing and without due process of law.

On September 11, 1953, petitioner was duly tried by the City Court and a jury upon the charge of operating a motor vehicle while in an intoxicated condition, and the jury returned a verdict of "not guilty". Thereupon, the petitioner was duly discharged by the court.

The instant proceeding was thereafter commenced on September 23, 1953, and the respondent did file with the court a written objection in point of law to the petition upon the ground that it did not state facts sufficient to entitle the petitioner to any relief. Motion was thereupon made by the respondent for an order dismissing the petition, and it is this motion that is now before the court. It is, in effect, the contention of the petitioner that his petition is to be sustained in that he has been deprived of his constitutional rights. In fact, he makes the broad claim that said section 71-a of the Vehicle and Traffic Law is unconstitutional and that, therefore, the action of the commissioner in revoking his license was illegal and void.

There has been a long-felt need for further legislation to clear the highways from the menace of the intoxicated driver. A mounting toll yearly in injured and dead has been his responsibility. The seriousness of the problem is well-known, yet it is matter of common knowledge that the law enforcing officers and courts have been unable to adequately deal with the problem. The necessary convictions have not been forthcoming to effectively deter the great numbers who do drive after taking a few drinks. The failure to convict in a particular case is generally due to the inability to prove beyond a reasonable doubt that the driver was intoxicated. Thus, any statute tending to assist in the marshalling of definite evidence as to state of intoxication of an accused is a step in the right direction.

Having in mind the urgent need for legislation looking toward the procurement of chemical tests for the purpose of definitely determining whether or not an accused driver was intoxicated to the extent of impairing his driving ability, this particular statute was enacted. It was the result of a great deal of study and the attempt was made to frame it in the particular way it is written for the purpose of avoiding all possible constitutional objections. (See Jan. 1953 Interim Report of N. Y. Joint Legislative Committee on Motor Vehicle Problems, Legis. Doc. [1953], No. 25.) The statute is framed upon the premise that the operation of a motor vehicle upon the public highways is the exercise of a mere privilege, which may be denied, rather than a right. (See People v. Rosenheimer, 209 N.Y. 115, 120, 121, and Matter of Heart v. Fletcher, 184 Misc. 659.) While there is doubt as to whether the higher courts will today go along fully with the broad language of the early decisions in this State in this connection (see post, this opinion), it is clear that the right to use the highways is a qualified right, and is the proper subject of licensing. The Legislature has the undoubted power to reasonably regulate the use of the highways and may impose reasonable conditions to be complied with to entitle one to a license to drive upon the highways. (See further, Reitz v. Mealey, 314 U. S. 33; Town of Waterford v. Brockett Lbr. Co., 227 App. Div. 422; Matter of Ohlson v. Mealey, 179 Misc. 13, and People v. Cohen, 128 Misc. 29.) Bearing this in mind, the statute is equivalent to an enactment by the Legislature that the operation of a motor vehicle on the highways of the State shall be deemed to constitute a consent by the operator that any license to operate it issued to him shall be deemed to have been issued subject to revocation in the event he shall refuse to submit himself to one or more of the tests therein provided for when demanded by a police officer having reasonable grounds to suspect him of driving while intoxicated.

The theory behind the statute is fundamentally sound, and the statute would unquestionably be sustained if there were inserted therein fair and reasonable safeguards required by the due process clauses. The various pertinent constitutional questions, including the question whether there is a denial of due process, have been briefed by counsel with exceptional thoroughness and ability, and it is fitting that the court shall set forth its conclusions in detail with respect to all such questions, and they follow:

1. The statute and the constitutional provisions against self incrimination.

It is clear that the statute does not infringe upon any constitutional guarantee against self incrimination. The provisions of the Fifth Amendment of the Federal Constitution in this connection would not apply because such provisions are not applicable in State proceedings. (Twining v. New Jersey, 211 U. S. 78.) And the conclusion is inevitable that the statute does not offend against section 6 of article I of the State Constitution providing that no person shall "be compelled in any criminal case to be a witness against himself". As stated by the Joint Legislative Committee (p. 26), under the statute "the accused is given the choice of waiving his right against self incrimination — assuming such a right exists — or losing the privilege to continue driving on our highways." Bearing in mind the purpose of the statute and that highway safety is a matter of great concern to the public, it may not be held that it is unreasonable or beyond legislative power to put such a choice to a motorist who is accused upon reasonable grounds of driving while intoxicated. And it is clear that one may waive his constitutional privilege against self incrimination. (See People v. Rosenheimer, 209 N.Y. 115, 122, 123.) In fact, there is no question but that one may waive any constitutional right which is solely personal in nature. (See 16 C. J. S., Constitutional Law, §§ 89-91.) In point, it is expressly held in a great number of cases that where a defendant voluntarily furnishes a specimen of his body fluid for analysis, there is a waiver of the right to urge the privilege against self incrimination. (See State of Arizona v. Duguid, 50 Ariz....