People v. Centerbar

• Decision Date: 20 January 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew CENTERBAR, Appellant.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 784 80 A.D.3d 1008 The PEOPLE of the State of New York, Respondent, v. Matthew CENTERBAR, Appellant. Supreme Court, Appellate Division, Third Department, New York. Jan. 20, 2011.

Gregory V. Canale, Queensbury, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: CARDONA, P.J., SPAIN, KAVANAGH, McCARTHY and EGAN JR., JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered May 20, 2009, convicting defendant upon his plea of guilty of the crime of vehicular manslaughter in the first degree.

Defendant was operating a motorcycle on the evening of August 9, 2008 when he was involved in a one-vehicle accident in the Town of Queensbury, Warren County, resulting in the death of his passenger, Joshua Bierman. A police officer for the Warren County Sheriff's Department, Jason Martindale, responded to the scene and spoke with defendant. Martindale detected the smell of alcohol on defendant, who was transported to the hospital where he was treated for his injuries. When asked at the hospital, defendant consented orally and in writing to having blood drawn by the nurse for use by the police. Defendant was not arrested. A blood test yielded a blood alcohol content of 0.14 percent. Defendant was subsequently indicted for vehicular manslaughter in the first degree and two counts of driving while intoxicated. After a hearing, County Court denied defendant's motion to suppress the blood alcohol test results, finding as a factual matter that defendant had voluntarily consented to the test and ruling that police were not required to arrest him before obtaining that consent. Defendant then entered a guilty plea to vehicular manslaughter in the first degree and was sentenced to 2 1/3 to 7 years in prison. Defendant now appeals.

Defendant's primary contentions on appeal are that police were required to place him under arrest prior to obtaining ablood sample with his consent, and that his consent was not the product of voluntary free will given his injuries and the lack of Miranda warnings. These claims do not withstand analysis.

Defendant's premise is that police are required to arrest a person prior to obtaining consent to draw blood if they have reasonable suspicion that the person was driving under the influence of alcoholor drugs ( see Vehicle and Traffic Law § 1192), relying upon the implied consent law contained in Vehicle and Traffic Law § 1194(2)(a)(1). Under that implied consent provision, any person who operates a motor vehicle in this state is deemed to have consented to a chemical blood alcohol test conducted at the direction of a police officer possessing reasonable grounds to believe such person to have been operating a motor vehicle in violation of Vehicle and Traffic Law § 1192, provided the test is administered "within two hours after such person has been placed under arrest for any such violation" (Vehicle and Traffic Law § 1194[2][a][1]; see People v. Goodell, 79 N.Y.2d 869, 870, 581 N.Y.S.2d 157, 589 N.E.2d 380 [1992]; People v. Morrisey, 21 A.D.3d 597, 598, 799 N.Y.S.2d 642 [2005] ). Unlike an actual consent situation in which a driver voluntarily submits to a test, the implied consent provision is directed at those drivers required to submit to the test, who face immediate suspension and subsequent revocation of their license to drive upon refusal to submit ( see People v. Ward, 307 N.Y. 73, 77-78, 120 N.E.2d 211 [1954]; see also Vehicle and Traffic Law § 1194[2][b] ). If a person so required to submit actually refuses, a court order is required to compel the test ( see Vehicle and Traffic Law § 1194[3][b] ), but the person's express consent is not required under the implied consent law ( see People v. Morrisey, 21 A.D.3d at 598, 799 N.Y.S.2d 642). Indeed, police have the authority under the implied consent provision to draw blood within the two-hour time-frame from a comatose person for whom they have reasonable grounds to suspect of driving under the influence, notwithstanding the inability to formally arrest that person ( see People v. Goodell, 79 N.Y.2d at 870-871, 581 N.Y.S.2d 157, 589 N.E.2d 380; People v. Lerow, 70 A.D.3d 66, 70-71, 889 N.Y.S.2d 813 [2009] ). Moreover, "the two-hour limitation ... has no application ... where ... defendant expressly and voluntarily consented to administration of the blood test" ( People v. Atkins, 85 N.Y.2d 1007, 1009, 630 N.Y.S.2d 965, 654 N.E.2d 1213 [1995] ). The Court of Appeals long ago recognized that the implied consent law "has no application where, as here, the defendant voluntarily submitted to the test," explaining that "it is difficult to perceive any necessity for the protections embodied in [the implied consent provision] where the driver freely volunteers to take the test" ( People v. Ward, 307 N.Y. at 76, 77, 120 N.E.2d 211). The Court reasoned that a test on voluntary consent is on parity with a warrantless consensual search and seizure; the results of both are admissible ( id. at 78, 120 N.E.2d 211).

Thus, we hold that where, as here, police possess reasonable grounds to believe that a driver has been driving under the influence, they are authorized to direct that the driver's blood be drawn with the voluntary consent of the driver to submit to a chemical test and are not required to arrest the driver before obtaining such consent ( see People v. Gaffney, 299 A.D.2d 922, 923, 750 N.Y.S.2d 383 [2002], lv. denied 99 N.Y.2d 582, 755 N.Y.S.2d 717, 785 N.E.2d 739 [2003]; People v. Craig, 262 A.D.2d 1074, 1074-1075, 692 N.Y.S.2d 257 [1999], lv. denied 93 N.Y.2d 1016, 697 N.Y.S.2d 575, 719 N.E.2d 936 [1999] ). That is, the arrest requirement in the implied consent law, like the two-hour time frame therein ( see People v. Atkins, 85 N.Y.2d at 1008-1009, 630 N.Y.S.2d 965, 654 N.E.2d 1213), has no application where a driver expressly and voluntarily consents to the administration of a blood alcohol test.

Turning to defendant's argument that his consent was not the product of free will, we perceive no grounds upon which to disagree with County Court's factual determination, after an evidentiaryhearing, that, despite his significant injuries, defendant's consent to the blood test was voluntary ( see People v. Gaffney, 299...