People v. Kates

• Decision Date: 12 December 1980
• Citation: 433 N.Y.S.2d 938,77 A.D.2d 417
• Parties: PEOPLE of the State of New York, Appellant, v. Robert A. KATES, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 938

433 N.Y.S.2d 938

77 A.D.2d 417

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

Supreme Court, Appellate Division, Fourth Department.

Dec. 12, 1980.

Lawrence T. Kurlander, Dist. Atty., Rochester, for appellant (Glenda Brayman, Rochester, of counsel).

Charles F. Crimi, Rochester, for respondent.

Before DILLON, P. J., and CARDAMONE, HANCOCK, CALLAHAN, and MOULE, JJ.

DILLON, Presiding Justice.

In a prosecution for criminally negligent homicide (Penal Law, § 125.10), two counts of driving while under the influence of alcohol (Vehicle and Traffic Law, § 1192, subds. 2, 3), and a traffic infraction (Vehicle and Traffic Law, § 1128, subd. (a)), the People appeal from an order suppressing the test results of blood samples taken from defendant when he was incapable of consenting to the withdrawal of his blood or the making of the test. Although defendant contests the authority of the People to appeal in the circumstances of this case (CPL 450.50, subd. 1), the principal questions presented are whether section 1194 of the Vehicle and Traffic Law requires express consent by a motor vehicle operator before a blood sample can be taken from him; and whether section 1194, as applied to an unconscious or uncomprehending driver, is violative of the equal protection clause (U.S.Const., 14th Amdt., § 1; N.Y.Const., Art. I, § 11) if such express consent is not required.

On March 3, 1979 at about 6:25 P.M. defendant was operating his motor vehicle when it collided with another vehicle which was solely occupied by the driver, who died as a result of the accident. There were two passengers in defendant's car. All four persons were injured and were taken to hospitals. At about 9:15 P.M., at the direction of a deputy sheriff, a doctor drew two blood samples from defendant and gave them to the deputy. A test of the samples showed that defendant's blood contained .18% by weight of alcohol. It was conclusively established at the suppression hearing that defendant was completely disoriented at the time his blood was drawn and because of his condition no request was made of defendant to submit to the blood test.

Initially, defendant argues, and the suppression court agreed, that because subdivision 2 of section 1194 of the Vehicle and Traffic Law confers the right to refuse to take the test, subdivision 1 of that statute must be interpreted as requiring an express consent before the result of a blood test can be admitted into evidence against him (People v. Biester, 24 A.D.2d 1021, 1022, 266 N.Y.S.2d 46 (dissenting memorandum)). We disagree.

While it is true that all parts of a statute must be read and construed together to ascertain the legislative intent (Matter of Bookhout v. Levitt, 43 N.Y.2d 612, 617, 403 N.Y.S.2d 200, 374 N.E.2d 111), a statutory construction which results "in the nullification of one part (of the statute) by another, is not permissible." (Matter of Albano v. Kirby, 36 N.Y.2d 526, 530, 369 N.Y.S.2d 655, 330 N.E.2d 615; see also Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 458, 426 N.Y.S.2d 454, 403 N.E.2d 159; Matter of Industrial Comr. of State of N.Y. v. Five Corners Tavern, 47 N.Y.2d 639, 646-647, 419 N.Y.S.2d 931, 393 N.E.2d 1005). To read into section 1194 (subd. 1) a requirement of express consent would nullify so much thereof as provides "(a)ny person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical test * * *." It is thus the plain meaning of section 1194 (subd. 1) that express consent is not required. Nor are the provisions of subdivisions 1 and 2 mutually contradictory. Subdivision 2 does no more than afford the opportunity to negate the implied consent already given under subdivision 1 (People v. Porter, 46 A.D.2d 307, 310, 362 N.Y.S.2d 249). "In the case of an unconscious individual, a chemical test can be administered since he is deemed to have given his consent when he used the highway. It is not necessary that a person be given the opportunity to revoke his consent. The only reason the opportunity to revoke is given is to eliminate the need for the use of force by police officers if an individual in a drunken condition should refuse to submit to the test" (Report of Joint Legislative Committee on Motor Vehicle Problems, entitled "Chemical Tests for Intoxication", McKinney's 1953 Session Laws of NY, 1912, 1928).

It is well established that express consent for withdrawal of a motor vehicle operator's blood is not constitutionally required. A compelled blood test does not violate due process (Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448), nor does it violate the privilege against self-incrimination or constitute an unreasonable search or seizure (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908). Miranda warnings need not first be given nor is there any necessity for the presence of c...