People v. Brol
| Decision Date | 03 April 1981 |
| Citation | 438 N.Y.S.2d 424,81 A.D.2d 739 |
| Parties | PEOPLE of the State of New York, Respondent, v. Raymond BROL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
J. Michael Jones, Geneseo, for appellant.
Theodore E. Wiggins, Jr., Geneseo, for respondent.
Before CARDAMONE, J. P., and SIMONS, CALLAHAN, MOULE and SCHNEPP, JJ.
Defendant has been convicted of manslaughter second degree, assault third degree, driving under the influence of alcohol and failure to keep right. The charges arose from an automobile accident in which defendant's vehicle, proceeding southerly on the East Lake Road in the Town of Livonia, collided with a northbound vehicle operated by Charles McDougel. McDougel was killed and his wife and child were seriously injured. At the trial evidence was admitted that defendant had refused to take an alcohol blood test after the accident. Defense counsel, noting that the arresting officer had testified to two different times of arrest, two hours apart, insisted that this evidence was incompetent because the request was not timely. The court denied defendant's motion for a preliminary hearing or voir dire to resolve the factual dispute, however, and it made no finding on the point. We therefore remit the case for a hearing to determine the time when defendant was arrested. If he was requested to take the test after the two hours had expired, evidence of his refusal was incompetent and should not have been considered by the jury.
Section 1194, subd. 1 of the Vehicle and Traffic Law provides that the operator of a motor vehicle may be tested for blood alcohol within two hours after his arrest at the direction of a police officer if the officer has reasonable grounds to believe the operator has violated section 1192 of the Vehicle and Traffic Law (see, also, Matter of Kowanes v. State of New York Dept. of Motor Vehicles, 54 A.D.2d 611, 387 N.Y.S.2d 331; Matter of Murray v. Tofany, 33 A.D.2d 1080, 307 N.Y.S.2d 776). Unless the test is taken within the two-hour time limit, however, the results are not competent evidence and may not be received in evidence against the operator (see 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; People v. Bock, 77 Misc.2d 350, 353 N.Y.S.2d 647). An operator's refusal to take the test is also admissible in court against him (see Vehicle and Traffic Law, § 1194, subd. 4). But if the test's results are incompetent if...
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