People v. Fisher

• Decision Date: 25 May 1968
• Citation: 290 N.Y.S.2d 1008,56 Misc.2d 1021
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Chester A. FISHER, Defendant.
• Court: New York Justice Court

Page 1008

290 N.Y.S.2d 1008

56 Misc.2d 1021

The PEOPLE of the State of New York, Plaintiff, v. Chester A. FISHER, Defendant.

Justice Court, Village of Depew.

May 25, 1968.

Donald J. Kohlmeier, Buffalo, for defendant.

THADDEUS J. PIUSIENSKI, Village Justice.

The defendant was charged with driving while intoxicated in violation of Section 1192, subdivision 2 of the Vehicle and Traffic Law. The offense allegedly occurred on the 26th day of January, 1968 within the jurisdiction of this Court.

By notice of motion dated February 15, 1968, the defendant moved for an order declaring that a chemical test of his urine taken subsequent to his arrest is illegal and void and suppressing the results of the test as evidence. The basis for the motion is that the Police Department of the Village of Depew, a member of which arrested the defendant and supervised the administration of the test, had failed to establish rules and regulations for the administration of the test.

At the hearing on this motion, it was conceded that no written rules or regulations concerning the administration of such a test exist within the Police Department of the Village of Depew. There was testimony that the Department has a general scheme for the handling of chemical tests and that the members of the Department function similarly in the administration of tests.

In the opinion of this Court, it is unnecessary to decide whether the general scheme referred to is a rule or regulation for the administration of the test.

Section 1194 of the Vehicle and Traffic Law provides for the administration of a chemical test of one believed to have been driving in an intoxicated condition. The section requires that the test be 'administered at the direction of a police officer * * * and in accordance with the rules and regulations established by the police force of which he is a member.'

If the general scheme and understanding of the members of the Depew police force are not rules and regulations, the test could not have been administered pursuant to rules and regulations. Absent rules and regulations, the result of the test is inadmissible as a matter of law and must be suppressed. People v. McFarren, 28 Misc.2d 320, 222 N.Y.S.2d 828. See also People v. Fogerty, 18 N.Y.2d 664, 273 N.Y.S.2d 343, 219 N.E.2d 801 and the implied affirmance opinion of Police Justice Roger Scott in People v. Simmons, 52 Misc.2d 235, 277 N.Y.S.2d 356.

More importantly, however, this Court believes that, in any event,...