People v. Delaney

• Decision Date: 29 September 1975
• Citation: 373 N.Y.S.2d 477,83 Misc.2d 576
• Parties: The PEOPLE of the State of New York v. Lucille DELANEY, Defendant.
• Court: New York District Court

Page 477

373 N.Y.S.2d 477

83 Misc.2d 576

The PEOPLE of the State of New York v. Lucille DELANEY, Defendant.

District Court, Nassau County, First District, Traffic Arraignment.

Sept. 29, 1975.

Denis Dillon, Dist. Atty., County of Nassau, by Dennis Lavalle, Asst. Dist. Atty., for plaintiff.

DECISION ON MOTION

DONALD X. CLAVIN, Judge.

The defendant, Lucille Delaney, received a summons from a member of the Nassau County Police Department Highway Bureau on July 4, 1974, for failure to take a breath test allegedly in violation of § 1193--a of the Vehicle and Traffic Law of the State of New York.

' § 1193--a. Breath tests for operators of certain motor vehicles

Every person operating a motor vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a police officer, submit to a breath test to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may require such operator to submit to a chemical test in the manner set forth in section eleven hundred ninety-four of this chapter.'

This test is not the same test required of a motorist pursuant to § 1194 of the Vehicle and Traffic Law. It is merely a pass-fail test with no calibration of any kind.

Pursuant to the rules and regulations of the Nassau County Police Department, Training Manual Bulletin Nineteen, Revised March 1971, an officer only requests a motorist to take the breath test if he does not have reasonable grounds to believe the person to be driving in violation of the provisions of § 1192 of the Vehicle and Traffic Law. The purpose of the breath test is to determine whether the person has consumed alcohol.

If the motorist takes the test and passes it he is allowed to proceed. If he takes the test and does not pass it, he is taken into custody and taken to the stationhouse or precinct. If the motorist refuses to take the test or refuses to give a sufficient amount of breath for proper testing, he is given a summons for violation of § 1193--a and is allowed to proceed.

The State of New York has imposed a requirement on a motorist to consent to a chemical test of his breath, blood, urine and saliva. If a motorist declines the chemical test, he is entitled to a hearing before the Motor Vehicle Commissioner at which time a determination may be made as to whether the person loses his license to operate a motor vehicle in this State. The motorist is not charged with any violation of law for refusing to take this test. Section 1194 has been held constitutional as being in compliance with the Supreme Court decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

In Schmerber, supra, the defendant was represented by counsel and was allowed to confer with counsel (pp. 765, 766, 86 S.Ct. 1826) and the defendant prior thereto had been advised of his right to counsel and of his right to remain silent (p. 769, 86 S.Ct. 1826). The court also indicated that it might not have come to the same conclusion if blood had been taken by the police at the stationhouse instead of by a doctor at a hospital (p. 772, 86 S.Ct. 1826). It was stated that taking blood from the defendant was not a communicative act and required no participation of the accused and the actions of the accused were irrelevant to the results (p. 765, 86 S.Ct. 1826).

In deciding this case, the court has taken into consideration United States Supreme Court decisions in U.S. v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); Marchetti v. U.S., 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); and Grosso v. U.S., 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). This Court is in full accord with the following portion of the dissenting opinion of Mr. Justice Douglas in Knox, supra, 396 U.S. pp. 84 and 85, 90 S.Ct. p. 368:

'. . . The majority argues that by the terms of Marchetti the Government is not prohibited from requesting the form, but is only prohibited from prosecuting an individual for his failure to comply with the request. At 80, n. 3, 90 S.Ct. at 365. The question in this case, however, is not whether the Government has the power to Request the form to be filed, but whether it has the power to Require the form to be filed. If Knox had merely been requested...