People v. Hamza

• Decision Date: 15 June 1981
• Citation: 441 N.Y.S.2d 579,109 Misc.2d 1055
• Parties: The PEOPLE of the State of New York v. Robert A. HAMZA, Defendant.
• Court: New York Town Court

Page 579

441 N.Y.S.2d 579

109 Misc.2d 1055

The PEOPLE of the State of New York v. Robert A. HAMZA, Defendant.

Gates Town Court, Monroe County.

June 15, 1981.

Sharon Kehoe, Asst. Dist. Atty., for plaintiff.

Charles T. Noce, Rochester, for defendant.

DECISION

DAVID D. EGAN, Judge.

Defendant has moved for dismissal on constitutional grounds of the charge that he violated Section 1193-a of the Vehicle and Traffic Law, Refusal to Take a Breath Screening Test, by Notice of Motion and supporting Affidavit of Charles T. Noce, Esq., dated May 15, 1981. The People responded by Answering Affirmation of Sharon M. Kehoe, Esq., Assistant District Attorney, dated May 28, 1981.

On May 10, 1981 at about 2:25 a. m. the defendant, while driving a motor vehicle was stopped by the State Police and charged by Trooper Tober with Speeding, under Section 1180(b) of the Vehicle & Traffic Law, moving from lane unsafely under Section 1128(a) of the Vehicle & Traffic Law, and being an unlicensed operator under Section 509(1) of the Vehicle & Traffic Law. He was also charged with violating Section 1193-a of the Vehicle & Traffic Law, Refusal to Take a Breath Screening Test, and with a violation of Section 1192(3) of the Vehicle & Traffic Law, Driving While Intoxicated. The latter two charges were made by State Trooper Corbitt, who also filed with the Court a report of refusal to submit to a chemical test by the defendant under Section 1194 of the Vehicle & Traffic Law citing the actual time of arrest as being 2:25 a. m. and the time of refusal as being 3:30 a. m. Upon arraignment of the defendant before this Court, that portion concerning the defendant's refusal to take the chemical test under Section 1194 was referred to a hearing by the Department of Motor Vehicles pursuant to Section 1194(3) of the Vehicle & Traffic Law. The simplified traffic information indicates that the time of refusal of the screening test under Section 1193-a as being 2:25 a. m. with the same time given for the charge of Driving While Intoxicated under Section 1192(3).

The defendant challenges the constitutionality of Section 1193-a of the Vehicle & Traffic Law on the grounds that it violates the defendant's right against self-incrimination conferred by the Fifth Amendment of the United States Constitution.

Section 1193-a reads as follows: "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 1194 of this chapter." A violation of Section 1193-a is punishable as an infraction by a fine and/or imprisonment. The purpose of the statute is to enable the police officer to investigate whether or not the defendant has been drinking alcoholic beverages and, if so, to enable the police officer to request that the defendant take the chemical test under Section 1194. Refusal to take the chemical test under Section 1194 differs in that it does not constitute a violation of a law and is not punishable by fine or imprisonment. Section 1194 has been held constitutional by a United States Court Decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The police are only allowed to request the defendant to take the 1194 chemical test when: (1) the officer has reasonable grounds to believe such person to have been driving in violation of any Subdivision of Section 1192 (Driving While Intoxicated or Driving While Ability Impaired) and...