People v. Ali, AP-3

• Decision Date: 08 July 1991
• Docket Number: AP-3
• Citation: 573 N.Y.S.2d 575,151 Misc.2d 742
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Wazir ALI, Defendant
• Court: New York City Court

Page 575

573 N.Y.S.2d 575

151 Misc.2d 742

The PEOPLE of the State of New York, Plaintiff, v. Wazir ALI, Defendant.

Criminal Court of the City of New York New York County, AP-3.

July 8, 1991.

Robert M. Baum, The Legal Aid Society (Matthew T. Dushoff, of counsel), New York City, for Ali, defendant.

Robert M. Morgenthau, Dist. Atty. (Margaret Jacobs, of counsel), New York County, for plaintiff.

EDGAR G. WALKER, Judge.

The defendant Wazir Ali is charged with one count of driving a motor vehicle while impaired by the consumption of alcohol and two counts of operating a motor vehicle while intoxicated, pursuant to subdivisions (1), (2) and (3) respectively of Section 1192 of the Vehicle and Traffic Law.

The information alleges that the defendant had a blood alcohol level of .11 of one per centum by weight of alcohol, as shown by a test administered pursuant to VTL 1194. The defendant has moved to suppress the results of the breathalyzer test, pursuant to Section 710.20 of the Criminal Procedure Law, on the ground that the test was not administered pursuant to VTL 1194 in that it was administered more than two hours after his arrest.

It is undisputed that the breathalyzer test was administered more than two hours after the defendant was arrested. Affidavits of the arresting officer and breathalyzer operator attached to the court papers show the time of arrest as being 12:15 a.m. and the time of the test as being 2:30 a.m. This case squarely presents the issue of whether, in the absence of a court order, a breathalyzer test must be administered within two hours of the arrest of a conscious driver.

In 1941, for the first time in New York State, the legislature provided that the results of tests measuring a driver's blood alcohol content (BAC) were admissible at trial [L.1941, c. 726, eff. July 1, 1941, amending VTL 70(5) ]. That statute required the test to be administered within two hours of arrest to be admissible. ¹ However, the law did not provide for the test to be administered except with the express consent of the accused. See 1941 Opns.N.Y.Att'y Gen.Ann.Rep. 143.

In 1953, for the first time in New York State, the legislature passed the so-called "implied consent law" providing that anyone operating a motor vehicle in the state "shall be deemed to have given his consent to a chemical test" to determine BAC [L.1953, c. 854, eff. July 1, 1953]. This statute, while adding a new section (VTL 71-a) to the law, left VTL 70(5), containing the two hour requirement, unchanged.

Since 1953, throughout innumerable amendments, the VTL has contained both an implied consent provision and a two hour rule. The 1959 recodification of the VTL [L.1959, c. 775, eff. October 1, 1960] retained the two hour requirement in Section 1192. The implied consent provision became Section 1194 of the new law.

In 1970, for the first time in New York State, the legislature enacted the forerunner of the present VTL 1192(2), providing for criminal liability based solely upon a driver's BAC as shown by a chemical test [L.1970, c. 275, eff. January 1, 1971]. Both the definition of the new offense contained in VTL 1192(2) and the provisions of VTL 1195(1), governing the admissibility of chemical tests at trial, required the tests to be administered pursuant to the provisions of VTL 1194. ²

The two-hour requirement was transferred to VTL 1194 which also retained the implied consent provision. There is no indication in any of the legislative history that, by transferring the two-hour requirement from VTL 1192 to VTL 1194, there was any intent to limit the application of the two-hour requirement to drivers who were unconscious or otherwise incapable of giving their consent. Indeed, the Governor, who proposed the amendments as part of his legislative program, stated, both in his memorandum in support of the bill when introduced and in his memorandum upon approving the bill after it was passed, that his bill made only "conforming" changes to Section 1194 of the Vehicle and Traffic Law (1970 McKinney's Session Laws of N.Y., at 3085, 3086).

Since 1941 the admissibility of chemical tests measuring BAC has been strictly governed by statute. As previously noted both VTL 1192(2) and VTL 1195(1) require that the test be administered pursuant to VTL 1194.

VTL 1194(2) governs "chemical tests," except for "compulsory chemical tests," which are governed by VTL 1194(3). Section 1194(2)(a) and Section 1194(3)(b) specify precisely when such tests are authorized. ³ Unless so authorized, the tests are inadmissible under VTL 1195(1) and cannot provide the basis for a conviction under VTL 1192(2) according to the specific language of those sections.

This court notes that there is no two-hour requirement contained in VTL 1194(3). It is clear that the legislature determined that such a restriction was unnecessary, relying upon the sound discretion of a neutral magistrate to ensure that the test results are reasonably related to the driver's BAC at the time of the alleged offense. People v. McGrath, 135 A.D.2d 60, 524 N.Y.S.2d 214 [2d Dep't, 1986]. The legislature showed no such deference to the police officer in the field in VTL 1194(2).

This court is well aware of the opinion of the Appellate Division, Second Department in People v. Mills, 124 A.D.2d 600, 507 N.Y.S.2d 743 (1986), that the two-hour rule does not apply in situations where the test has been administered with the defendant's "express consent." The Appellate Division, First Department has not addressed this issue. Were Mills the only authority, this court would be constrained to follow that holding. However, there is a split among the appellate divisions, requiring this court to decide for itself which rule to follow.

The Appellate Division, Fourth Department has long held that, at least in the absence of a court order, "[u]nless the test is taken within the two-hour time limit ... the results are not competent evidence and may not be received in evidence against the operator." People v. Brol, 81 A.D.2d 739, 740, 438 N.Y.S.2d 424 (1981). See also White v. Melton, 60 A.D.2d 1000, 401 N.Y.S.2d 664 (1978); Jentzen v. Tofany, 33 A.D.2d 532, 314 N.Y.S.2d 297 (1969).

Different panels in the Appellate Division, Third Department have reached opposite results. In People v. Keane, 76 A.D.2d 963, 428 N.Y.S.2d 972 (1980), the appellate panel ruled that "[i]n the absence of this vital proof [that the test was administered within two hours of defendant's arrest], the chemical test results were not admissible in evidence." 76 A.D.2d at 963, 428 N.Y.S.2d 972. However, a different panel, following Mills, ruled that the People had no duty to prove that the test was administered within two hours of defendant's arrest. People v. Abel, 166 A.D.2d 841, 563 N.Y.S.2d 531 (1990). That panel made no attempt to distinguish Keane, not even mentioning that prior decision from the same department, even though one justice was a member of both unanimous panels!

While the court in Mills, supra, did not define exactly what it meant by "express consent" it seems clear that the court used that term in contrast to "implied consent," used to refer to situations in which the driver was either unconscious or otherwise unable to give his "express consent." That court thus read out of the statute the most common scenario by which the test is administered, i.e. a police officer requests a driver to take the test, informs the driver of the consequences of a refusal and then administers the test with the "express consent" of the driver.

While this court is sympathetic to the approach taken by the court in People v. Sesman, 137 Misc.2d 676, 521 N.Y.S.2d 626 (1987), which found that the aforesaid scenario constitutes "acquiescence" rather than "consent," thus distinguishing Mills, those lower courts following Mills (see, e.g. People v. Dillin, 150 Misc.2d 311, 567 N.Y.S.2d 991 (1991); and People v. Johnson, NYLJ 4/15/91, p. 26, col. 1) have not read Mills so narrowly. This court agrees with the more expansive reading of the holding in Mills but declines to follow it.

This court cannot conclude that the legislature in 1970, merely by moving the language embodying the two-hour requirement from VTL 1192 to VTL 1194, intended to accomplish a major change in the existing law in the absence of clear language to that effect either in the statute itself or in the legislative history. The unambiguous language of VTL 1192(2) and VTL 1195(1) belies such an intent.

This court is aware of no authority which allows a defendant to waive the pleading and proof of an essential element of a crime under any circumstances. Certainly where a defendant is warned that if he refuses to take the test his license will be revoked and his refusal admitted into evidence at his trial, no such waiver can be inferred from his consent to take the test. In fact the information itself, tracking the statutory language, alleges that the test was administered "pursuant to provisions of Section 1194 of the Vehicle and Traffic Law." That allegation is, on the face of the information, not true. The People seem to recognize the necessity of pleading compliance with the provisions of VTL 1194 while at the same time taking the position that it is inapplicable to the consciously consenting defendant.

In the absence of compelling appellate authority to the contrary, this court cannot conclude that the detailed safeguards embodied in VTL 1194(2)(a) are intended to apply solely to unconscious drivers.

People v. Ward, 307 N.Y. 73, 120 N.E.2d 211 (1954), is often cited as such compelling authority. (See, e.g., People v. Abel, supra; People v. Dillin, supra; People v. Johnson, supra.) The court in Ward determined that a driver need not be apprised of his rights under VTL 71-a, then in effect, to refuse to take the test and to have his own physician administer an additional test.

It must be remembered, however, that VTL 71-a dealt only with implied consent and did not...