People v. Batista
| Decision Date | 03 July 1985 |
| Parties | The PEOPLE of the State of New York v. Nilda BATISTA, Defendant. |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York County, New York City (Margaret Giugliano, New York City, of counsel), for the People.
The Legal Aid Society (Suzanne Sherbell, New York City, of counsel), for defendant.
On September 7, 1984 the defendant, Nilda Batista, was arrested and charged with a variety of Vehicle and Traffic Law offenses, including VTL § 1192(2), driving while intoxicated. The defendant now moves for an order suppressing the results of the breathalyzer examination pursuant to CPL 710.20(5) and VTL § 1194(8).
A review of the moving papers and court records reveals the facts to be as follows. The defendant was arrested on September 7, 1984. After the defendant's arrest, the following exchange took place and was recorded on videotape:
Defendant: "Well, can I take my blood test?"
Officer Pniewski: "No, we don't do the blood test for you."
No further conversation took place concerning the blood test.
The defendant consented to a breathalyzer examination, which showed her blood alcohol level to be .14 of one percent by weight. The defendant refused to be fingerprinted. Due to this refusal the defendant was not issued a Desk Appearance Ticket and was held to be arraigned on September 9, 1984.
The defendant did not exercise her right to make a phone call. The police failed to make any arrangements for the defendant to have a blood test taken while she was in custody.
VTL § 1194(8) 1 gives a person the right to have an independent physician perform a chemical test of their blood alcohol, in addition to the one required by the Police Department. Both tests must be performed within two hours of arrest. (VTL § 1194[1].) 2 (See People v. Seaman, 64 Misc.2d 684, 315 N.Y.S.2d 743 [District Court Suffolk County, 1970].)
The issue this court must decide is whether the defendant has been denied her right to an independent blood alcohol examination in such a manner as to require the suppression of the breathalyzer test administered by the Police Department.
In People v. Hoats, 102 Misc.2d 386, 423 N.Y.S.2d 425 (County Court, Monroe County, Mark, J. [1979] ), the court established a two-prong test to determine if the results of a breathalyzer test should be suppressed on the ground that the defendant was denied an independent test (VTL § 1194[8] ). There, the court reasoned that to satisfy the first prong, the defendant must demand such a test. I find that the defendant's statement on videotape, "Well, can I take my blood test?", is a sufficient demand to put the police on notice that the defendant wishes to exercise her right to an independent test. To require more from a defendant in this situation would make this right to a second and independent chemical test "wholly illusory" .
The second prong of the test set forth in Hoats, supra, is that the defendant must be allowed to have his own physician administer an additional test. In a normal situation, when a defendant is issued a Desk Appearance Ticket, he or she is free to arrange for such a test. Here, the defendant was not issued a DAT due to her failure to consent to fingerprinting.
Accordingly, this court must determine if the defendant's refusal to be fingerprinted released the police from their obligation to protect the defendant's right to an independent blood test.
Clearly, under CPL 160.10 the police are required to fingerprint the defendant either voluntarily after the arrest or upon court order after arraignment. (See 160.10[1][c].) In light of the defendant's refusal to be printed, it was appropriate for the police to hold the defendant pending the receipt of a court order to compel the defendant to submit to fingerprinting.
Once the police had made the determination that the...
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Green v. State
...326 S.E.2d 856 (1985); Mitchell v. City of N. Little Rock, 15 Ark.App. 331, 692 S.W.2d 624 (1985) 6; and People v. Batista, 128 Misc.2d 1054, 491 N.Y.S.2d 966 (N.Y.Crim.Ct.1985). However, review of these cases reveal that they are distinguishable from the case at bar in that the states' sta......
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...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 unne......
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Casper v. Iowa Dept. of Transp., Motor Vehicle Div., 92-408
...failure to afford him that opportunity resulted in a suppression of the test administered by the law officer. In State v. Batista, 128 Misc.2d 1054, 491 N.Y.S.2d 966 (1985), the court dealt with the question of what constituted a demand for an independent blood test. Both of these cases inv......