People v. Atkins

• Decision Date: 13 June 1995
• Citation: 630 N.Y.S.2d 965,85 N.Y.2d 1007,654 N.E.2d 1213
• Parties: , 654 N.E.2d 1213 The PEOPLE of the State of New York, Respondent, v. Niles ATKINS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 965

630 N.Y.S.2d 965

85 N.Y.2d 1007, 654 N.E.2d 1213

The PEOPLE of the State of New York, Respondent, v. Niles ATKINS, Appellant.

Court of Appeals of New York.

June 13, 1995.

Robert S. Dean and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Elizabeth C. Brennan and Donald J. Siewart, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of Appellate Term should be affirmed.

Defendant was arrested and charged with operating a motor vehicle while impaired by drugs (Vehicle and Traffic Law § 1192[4] after he was found behind the wheel of a vehicle which had collided with a parked vehicle. Blood withdrawn from defendant after his arrest tested positively for the presence of phencyclidine, or PCP.

Defendant moved to suppress the results of the blood test, arguing that the test was administered in violation of Vehicle and Traffic Law § 1194(2) because the blood was withdrawn more than two hours after his arrest. The motion was decided on a brief stipulated account of the facts surrounding the administration of the test, as follows. Defendant was arrested at the scene of the accident and taken to a hospital for examination. Within two hours of his arrest, defendant consented to the administration of a blood test. The test, however, was not administered until two hours and 28 minutes after his arrest. Criminal Court denied the motion, and Appellate Term affirmed, finding the two-hour requirement of Vehicle and Traffic Law § 1194(2) to be inapplicable because defendant had voluntarily consented to the blood test.

In People v. Ward, 307 N.Y. 73, 120 N.E.2d 211, this Court held that former section 71-a of the Vehicle and Traffic Law--the predecessor "deemed consent" statute to Vehicle and Traffic Law § 1194 ¹--had no application where the defendant expressly and voluntarily consented to a blood test (id., at 76, 120 N.E.2d 211). Noting that the deemed consent statute "was concerned, not with those who consented to take the test, but with those who were required to submit", we found it "difficult to perceive any necessity for the protections embodied in [the deemed consent statute] where the driver freely volunteers to take the test and have his blood analyzed" (id., at 77, 120 N.E.2d 211). It follows from our decision in Ward that the two-hour limitation contained in Vehicle and Traffic Law § 1194(2)(a) has no application here where, as found by Appellate Term, defendant expressly and voluntarily consented to administration of the blood test. ²

Defendant's contention that the two-hour limitation in section 1194(2)(a) was intended by the Legislature to be an absolute rule of relevance, proscribing admission of the results of any chemical test administered after that period regardless of the nature of the driver's consent, is unpersuasive. This argument is completely undermined by the lack of a corresponding time limit for court-ordered chemical testing under section 1194(3) (see, People v. McGrath, 135 A.D.2d 60, 524 N.Y.S.2d 214, affd. on opn below 73 N.Y.2d 826, 537 N.Y.S.2d 480, 534 N.E.2d 318) or the additional test which the driver must be permitted to have administered by a physician of his or her choosing under section 1194(4)(b) (see, People v. Finnegan, 85 N.Y.2d 53, 59, 623 N.Y.S.2d 546, 647 N.E.2d 758).

SIMONS, Judge (dissenting).

In my view the results of the blood test must be suppressed. The two-hour limitation is a legislative determination on relevance: if the sample has not been taken within two hours the evidence is inadmissible. The rule the majority establishes ignores the probative uses of the test, suggesting that somehow there is less need for a reliable blood test where defendant has "actually" consented to it. An untimely test does not become more reliable, however, just because the driver voluntarily consented.

I base my view on the legislative history of the statute. In 1941, the Legislature amended former section 70(5) of the Vehicle and Traffic Law to allow, for the first time, the admission at trial of the results of a chemical test for blood alcohol, provided that the test had been administered within two hours of arrest. Because the human body rapidly metabolizes alcohol, the two-hour requirement was enacted to ensure that the results of the blood test constituted probative evidence of the defendant's blood alcohol level at the time of operation of the vehicle (see, Mem of Assemblyman Peterson [Assembly Sponsor] in support, Bill Jacket, L.1941, ch. 726; People v. Gursey, 22 N.Y.2d 224, 229, 292 N.Y.S.2d 416, 239 N.E.2d 351). Opposition to the amendment primarily centered on two issues: its constitutionality, and the question of evidentiary relevance. Some opponents thought the bill ought to require a blood test taken within two hours of vehicular operation, not of arrest, in order to provide better evidence of the driver's level of alcohol consumption (see, Report of Comm on Criminal Courts, Law and Procedure of Assn of Bar of City of N.Y., Bill Jacket, L.1941, ch. 726). The Legislature was aware of this criticism, but also of the practicalities involved in locating, arresting, and arranging to test the driver. Thus, the two-hour limit is, to some extent, a compromise, ^* but one that provided a bright-line evidentiary rule easily applicable by law enforcement and by the courts (see, e.g., People v. Brol, 81 A.D.2d 739, 438 N.Y.S.2d 424; People v. Keane, 76 A.D.2d 963, 428 N.Y.S.2d 972; Matter of White v. Melton, 60 A.D.2d 1000, 401 N.Y.S.2d 664; Matter of White v. Fisher, 49 A.D.2d 450, 375 N.Y.S.2d 663).

The provision enacting a two-hour time limit is thus quite distinct, both in its history and its purpose, from the statutory provisions embodying the concept of deemed consent (see, Matter of Viger v. Passidomo, 65 N.Y.2d 705, 492 N.Y.S.2d 2, 481 N.E.2d 542; Matter of White v. Fisher, 49 A.D.2d 450, 375 N.Y.S.2d 663, supra ). Even after the Vehicle and Traffic Law was amended to allow the admission into evidence of blood tests performed in accordance with the statutory provisions, relatively few such tests were admitted because of the prevalent view that only a completely voluntary test was constitutionally acceptable, and few drivers voluntarily consented (see, People v. Ward, 307 N.Y. 73, 76-77, 120 N.E.2d 211 [discussing legislative history of Vehicle and Traffic Law former § 71-a]. Through the concept of deemed consent, whereby every person operating a motor vehicle on the State's highways was deemed to have thereby given consent to a blood test at the direction of law enforcement (see, Vehicle and Traffic Law former § 71-a; current Vehicle and Traffic Law § 1194), all testing was effectively rendered "voluntary," or at least consensual. The Legislature recognized, however, that some drivers, particularly when their faculties were impaired by alcohol, might physically resist the taking of a blood sample. If law enforcement officials were required to employ physical force to obtain the blood sample in those circumstances, the test results would be the product of coercion and would no longer satisfy the demands of due process. In order to obviate the need for physical force, the deemed consent amendment provides the driver with an opportunity to affirmatively withdraw that consent, upon being informed of the consequences of that withdrawal, i.e., suspension of driving privileges and admission of the driver's refusal to take the test at trial (see, Interim Report of Joint Legis Comm on Motor Vehicle Problems, 1953 McKinney's Session Laws of N.Y., at 1912-1928). By this means the statute created, in effect, a constitutionally legitimate device for extracting submission to the test from an otherwise reluctant driver. The consent provision was included to permit a driver who had refused to take the test to...