People v. Kates

• Decision Date: 27 October 1981
• Citation: 444 N.Y.S.2d 446,53 N.Y.2d 591,428 N.E.2d 852
• Parties: , 428 N.E.2d 852 The PEOPLE of the State of New York, Respondent, v. Robert A. KATES, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 446

444 N.Y.S.2d 446

53 N.Y.2d 591, 428 N.E.2d 852

The PEOPLE of the State of New York, Respondent, v. Robert A. KATES, Appellant.

Court of Appeals of New York.

Oct. 27, 1981.

Charles F. Crimi, Rochester, for appellant

Donald O. Chesworth, Jr., Dist. Atty. (Glenda K. Brayman, Rochester, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

The primary question on this appeal is whether a blood alcohol test of a hospitalized driver, who was unconscious or so disoriented that the police were unable to obtain his consent, was made in violation of section 1194 of the Vehicle and Traffic Law. The trial court suppressed the test results holding that the statute requires express consent and that a contrary interpretation would violate the equal protection rights of the unconscious driver. The Appellate Division, 77 A.D.2d 417, 433 N.Y.S.2d 938, reversed finding no statutory or constitutional bar to admissibility. The defendant appeals claiming the trial court properly suppressed. He also argues that the prosecutor possesses other evidence of intoxication and thus had no right to appeal the suppression order in this case.

At approximately 6:00 P.M. on March 3, 1979 a car driven by the defendant collided with another car fatally injuring the woman driving that vehicle. The defendant and his three passengers were removed to nearby hospitals. After examining the accident scene the police spoke to one of the defendant's passengers who appeared to be intoxicated. At approximately 9:00 P.M. the police went to see the defendant who was then in another emergency room being treated for various injuries including lacerations of the head. As the police approached the defendant they detected an odor of alcohol, observed that his eyes were bloodshot and watery and concluded that he was intoxicated. They also concluded, and it was found as a fact at the hearing, that the defendant was so disoriented as to be incapable of giving or refusing consent to a blood test. Thus, unable to obtain his consent the police simply asked the attending physical to take a blood sample. This was done without incident and subsequent analysis showed that defendant's blood contained .18% by weight of alcohol. The defendant was indicted for criminally negligent homicide, driving while intoxicated and related offenses.

Prior to trial the defendant moved to suppress the blood test results on the grounds that they were obtained without his consent in violation of section 1194 of the Vehicle and Traffic Law and his constitutional rights under the Fourth Amendment and the equal protection clause of the Fourteenth Amendment. After a hearing the court found that it was, in fact, impossible for the police to obtain defendant's consent because of his condition at the time of the test. Nevertheless the court concluded that under the statute blood test results are not admissible unless the defendant "expressly consented" to the test. The court also agreed with the defendant that if the statute were construed to dispense with the need to consent in the case of an unconscious driver it would violate the defendant's constitutional right of equal protection.

The People appealed the suppression order (CPL 450.20, subd. 8) and certified that the remaining proof was not sufficient to obtain a conviction (CPL 450.50, subd. 1). The Appellate Division reversed concluding that section 1194 literally read did not require the driver's express consent to a blood test and that its history showed that the Legislature did not intend lack of consent to be a bar to the admissibility of blood test results when the driver was unconscious or otherwise incapable of giving or refusing consent. The court also found that there was a basis for distinguishing between conscious drivers and unconscious drivers and thus no denial of equal protection. The defendant's contention that the suppression order was not appealable because the prosecutor had other evidence of intoxication was found to be without merit in view of the prosecutor's certification that the suppressed evidence was essential to his case. On these points we agree with the Appellate Division.

Initially it should be noted that taking the blood sample in this case did not involve any violation of the defendant's constitutional rights under the Fourth or Fifth Amendments. Taking a driver's blood for alcohol analysis does not call for testimonial compulsion prohibited by the Fifth Amendment (Schmerber v. California, 384 U.S. 757, 760-765, 86 S.Ct. 1826, 1830-32, 16 L.Ed.2d 908; People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584). Nor does it involve an unreasonable search under the Fourth Amendment when there is probable cause, exigent circumstances and a reasonable examination procedure (Schmerber v. California, supra, 384 U.S. pp. 768-772, 86 S.Ct. pp. 1834-36). So long as these requirements are met--and the defendant does not suggest that they were not met in this case--the test may be performed absent defendant's consent and indeed over his objection without violating his Fourth Amendment rights (Schmerber v. California, supra, p. 759, 86 S.Ct. pp. 1829).

Thus the defendant's contention that the test made without his consent was illegal, depends solely upon his interpretation of section 1194 of the Vehicle and Traffic Law. Subdivision 1 of that statute establishes the general rule that "Any person who operates a motor vehicle in this state shall be deemed to have given his consent" to such a test. Subdivision 2 contains an exception which is only applicable when the driver refuses to consent. It states "If such person having been placed under...