People v. Hougland

• Decision Date: 26 November 1974
• Citation: 79 Misc.2d 868,361 N.Y.S.2d 827
• Parties: The PEOPLE of the State of New York v. Carol HOUGLAND, Defendant. * * State Report Title: People v. Houghland
• Court: New York District Court

Page 827

361 N.Y.S.2d 827

79 Misc.2d 868

The PEOPLE of the State of New York v. Carol HOUGLAND, Defendant. *

* State Report Title: People v. Houghland

District Court, Suffolk County, First District.

Nov. 26, 1974.

H. Wenzel, Dist. Atty. by Don Schlimbaum, Asst. Dist. Atty., for the people.

John Middlemiss, Jr., Huntington Station, Legal Aid Society by Karl Bonheim, Merrick, for defendant.

MEMORANDUM

HOWARD BERLER, Judge.

The defendant was charged with Driving While Intoxicated pursuant to section 1192 subd. (3) of the Vehicle and Traffic Law of the State of New York. After the jury was chosen the defendant requested a separate hearing out of the ears of the jury for the purpose of determining whether a refusal to take a chemical analysis test by the defendant be admitted into evidence in the event it was the People's intentions to offer such refusal. After the People admitted it was their intentions to introduce the refusal and some contemplation by the court the application for a separate hearing was granted.

During the hearing evidence was received with regard to the Miranda rights (384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and the foundation required by section 1194 subd. (2) of the Vehicle and Traffic Law before the refusal be admitted.

The refusal was in fact established by the People through the testimony of a police officer that the defendant while in custody and while being interrogated stated to him 'I refuse to take the test'. This court did find that the People's evidence did further indicate that the foundation required by section 1194 subd. (2) of the Vehicle and Traffic Law for the introduction of the refusal was properly made. (The foundation I referred to here is the requirement provided in section 1194 subd. (2) that the admissibility of the refusal is conditioned upon a showing that the person persisted in his refusal after he has been given sufficient warning, in clear and unequivocal language, that his refusal would result in the revocation of his license, and would be admissible against him at trial.) However, this court further found as an issue of fact that the rights provided by the Constitution as defined by Miranda, supra, were not intelligently, knowingly and voluntarily waived by the defendant. Accordingly, this court ordered that the People be precluded from offering testimony of the refusal into evidence.

The People objected and took exception to the court's ruling citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 and arguing that a distinction be made between the refusal in fact and the words given rise to the refusal. They submit the refusal offered into evidence is conduct to be divorced from the words ('I refuse to take the test') and accordingly the Fifth Amendment which applies only to testimonial compulsion is not involved, thereby precluding the application of Miranda.

In that section 1194 subd. (2) of the Vehicle and Traffic Law is a comparatively new section and the issues involved in the court's ruling seem to be those of first impression, this court decided to file a written decision explaining its reasons for same and discussing the implications it may give rise to.

The first issues to be determined are as follows:

1. Is the defendant's refusal to take the chemical analysis test an admission?

2. If the refusal is an admission is it the type of admission contemplated by Miranda?

People v. Stratton, 1 N.Y.2d 664, 150 N.Y.S.2d 29, 133 N.E.2d 516, affg., 286 App.Div. 323 at 326, 143 N.Y.S.2d 362 at 364, characterizes a similar refusal as evidence introduced to create an unfavorable inference against the defendant which characterization this court subscribes to. Prince, Richardson on Evidence, § 209 (10th ed. 1973) defines an admission 'an act or declaration of a party, or of his representative or predecessor in interest, which constitutes evidence against a party at trial. As a general rule, any declaration or conduct of a party which is inconsistent with his position on trial may be given in evidence against him as an admission . . .'

Therefore the conclusion is inescapable that the evidence giving rise to the inference and the inference itself must be deemed an admission.

Now we come to the more difficult question; does such an admission come within the purview of Miranda requiring the defendant be advised of certain of his constitutional rights and also providing he may waive those rights if such waiver is made voluntarily, knowingly and intelligently before custodial questioning of the defendant may be commenced. In the case at bar, to establish the refusal the police officer testified: 'I advised the defendant as follows:

"You are requested to submit to a chemical test to be administered at the direction of the police officer for the purpose of determining the alcohol or drug content of your blood in order to ascertain whether or not you are intoxicated. The results of such test may be used for or against you in court. You may refuse a test to be taken but if you do refuse, your license may be revoked, whether or not you are found guilty of the charge for which you are arrested. You are permitted to have a physician of your own choosing administer a chemical test in addition to the one administered at the direction of the police officer.

"You are hereby advised that evidence of your refusal to submit to the above chemical test is admissible in evidence and will be used against you in any trial, proceeding or hearing based upon your violation of the provisions of sections 1194 and 1192 of the...