People v. Dillin

• Decision Date: 04 March 1991
• Docket Number: AP-1
• Citation: 150 Misc.2d 311,567 N.Y.S.2d 991
• Parties: The PEOPLE of the State of New York v. Wayne DILLIN, Defendant
• Court: New York City Court

Page 991

567 N.Y.S.2d 991

150 Misc.2d 311

The PEOPLE of the State of New York v. Wayne DILLIN, Defendant.

Criminal Court of the City of New York,

New York County, Part AP-1.

March 4, 1991.

Robert M. Morgenthau, Dist. Atty., New York County (John J. Sullivan III, of counsel), New York City, for the People.

Herbert L. Weisman, Weisman & Weisman, New York City, for defendant.

PETER J. BENITEZ, Judge.

Defendant is charged in an information with Operating a Motor Vehicle While Under the Influence of Alcohol, Vehicle and Traffic Law (VTL) § 1192(2) and § 1192(3). Defendant previously moved to dismiss the VTL § 1192(2) charge, arguing that VTL § 1194 requires that a chemical breathalyzer test to determine blood alcohol level must be administered within two hours after arrest for its result to be admissible, and, in this case, the breathalyzer test was administered more than two hours after his arrest. The People argued that, as defendant expressly consented to having the test performed, it did not have to be performed within two hours after arrest to be admissible.

This court held, in People v. Dillin, (Crim.Ct. NY Co., Sept. 25, 1990), NYLJ Oct. 5, 1990, p. 23, col. 3, that the VTL did not impose any time restriction on a chemical test administered with a defendant's express consent. However, as defendant had limited his motions challenging the breathalyzer test solely to the issue of the applicability of the two hour provision of VTL § 1194 on the belief that VTL § 1194 required dismissal of the charge, this court granted defendant leave, "should he have a factual basis which can be alleged," to challenge the voluntariness of his alleged express consent. In doing so, this Court did not express any opinion as to what factual or legal basis could be alleged in support of a motion challenging the voluntariness of defendant's consent to have the test administered.

Now, defendant challenges his consent to have the chemical test administered, alleging that his consent was "involuntary." Specifically, defendant asserts that the video tape provided to him by the People confirms that, after his arrest, he was taken to the precinct and told he was going to be given a chemical test. Defendant further alleges that the officer told him:

If you refuse to submit to the chemical test or any portion thereof it will result in the immediate suspension and subsequent revocation of your license whether or not you are found guilty of the charges for which you have been arrested. If you refuse to take the chemical test or any portion thereof it will be introduced into evidence at any trial or procedural hearing for which you have been arrested.

Defendant asserts that, following these statements, the officer asked defendant whether he was willing to take the test and defendant responded, "yes." Defendant additionally asserts that at no time was he given "Miranda warnings." Defendant argues that his consent to take the breathalyzer test was involuntary as having been obtained without the benefit of "Miranda warnings," and as a result of the "coercive" nature of the warning given by the police officer concerning the consequences of a refusal to take the test.

The People respond by disputing defendant's assertion that Miranda warnings were not given defendant upon his arrest and, while conceding defendant's version of the statements made to him by the arresting officer concerning the consequences of a refusal, argue that the officer's recitation of statutorily required warnings concerning a refusal to submit to a chemical breathalyzer test does not, as a matter of law, render defendant's subsequent consent involuntary.

For the reasons set forth below, this Court holds that, as a matter of law, the facts alleged by defendant do not constitute legal grounds for vitiating defendant's consent to take the test. Accordingly, defendant's motion is denied.

A. Defendant's "Miranda" Claim:

The Court of Appeals has stated that the administration of a chemical test to determine blood alcohol level without a defendant's consent, as permitted by statute within two hours after arrest, or with his consent, does not involve any violation of a defendant's rights under the Fourth or Fifth Amendments. People v. Kates, 53 N.Y.2d 591, 594-95, 444 N.Y.S.2d 446, 428 N.E.2d 852 (1981). This conclusion was based on the determination that the test result did not constitute testimonial evidence implicating the privilege against self-incrimination nor did the test itself violate constitutional protections against unreasonable searches and seizures. See, Schmerber v. California, 384 U.S. 757, 761, n. 5, 86 S.Ct. 1826, 1830-31, n. 5, 16 L.Ed.2d 908 (1966) and People v. Kates, supra.

Accordingly, by consenting to the administration of a chemical test, whether or not he has been advised of the consequences of a refusal, a defendant is not being compelled to incriminate himself in violation of the constitutional privilege against self-incrimination. Therefore, "Miranda" warnings need not be given prior to his consenting to the administration of the test. See, People v. Craft, 28 N.Y.2d 274, 321 N.Y.S.2d 566, 270 N.E.2d 297 (1971); People v. Hochheimer, 119 Misc.2d 344, 352-354, 463 N.Y.S.2d 704 (Sup.Ct.Monroe Co.1983); People v. Rosario, 136 Misc.2d 445, 449-50, 518 N.Y.S.2d 906 (Crim.Ct.Bronx Co.1987) and the cases cited thereat.

B. Defendant's Coercion Claim:

Additionally, defendant claims that the warnings given to him by the police officer concerning the adverse consequences should he refuse to submit to the chemical test coerced his consent to have the test performed. This Court must determine whether the statutorily required refusal warnings are coercive and, if so, whether, as a matter of law, they improperly induce a waiver or impair the exercise of any constitutional or statutory rights.

It appears that only one court has considered the constitutional implications of the VTL warnings as they relate to a consent to submit to the test. See, People v. Hochheimer, supra. That court held that the warnings do not coerce a consent in violation of a defendant's constitutional rights. No court appears to have addressed the issue of whether the warnings coerce a waiver or impair the exercise of any statutory rights.

Under New York law, where the police have reasonable grounds to believe that a motorist is operating a vehicle while impaired or intoxicated by the consumption of alcohol in violation of VTL § 1192, a chemical test to determine blood alcohol level may be administered without the defendant's consent if he is unconscious or is unable to consent or refuse due to the extent of his injuries or intoxication. See, VTL § 1194(2)(a)(1) and People v. Kates, supra, 53 N.Y.2d at 595-96, 444 N.Y.S.2d 446, 428 N.E.2d 852. This interpretation of the statutory authorization to administer tests without a motorist's express consent is based on VTL § 1194(2)(a), which provides that all motorists who operate vehicles on the roads of this state are "deemed to have given consent" to the administration of a chemical test to determine blood alcohol level.

However, VTL § 1194(2)(b) mandates a different procedure where the arrested motorist is conscious and able to consent or refuse to have the test administered. In such circumstances, while the law requires a motorist to submit to a chemical test, the police officer must request that the defendant submit to the test and advise him of the consequences of a refusal, those being the immediate suspension and ultimate revocation of his license and the admissibility of his refusal in any proceeding relating to the arrest. If the defendant refuses to have the test administered, it may not be involuntarily administered. Rather, under certain circumstances, a police officer may seek a court order authorizing the administration of the test.

New York's statutory provisions requiring a motorist to submit to the administration of the chemical test or suffer the adverse consequences of a refusal are designed, consistent with constitutional rights, to enable the authorities to remove intoxicated motorists from the roads by either establishing the motorist's level of intoxication or revoking his privilege to drive should he not agree to be tested. Accordingly, our law clearly envisions that the threat of license revocation will induce submission to the test. By expressly consenting to have the test administered, a defendant is making a choice to submit to the required testing rather than refuse and suffer the adverse consequences of that refusal. However, by expressly consenting to have the test administered, a defendant is not...