People v. Kelty

Decision Date30 June 1978
Citation95 Misc.2d 246,406 N.Y.S.2d 972
CourtNew York District Court
PartiesPEOPLE of the State of New York, v. George P. KELTY, Defendant.

Denis Dillon, Dist. Atty., Nassau County, Mineola, by Thomas Feinman, for plaintiff.

Stephen P. Scaring, Mineola, for defendant.

HAROLD FERTIG, Judge.

DECISION

Defendant made an omnibus motion to suppress a statement allegedly made by the defendant and the results of a breathalyzer test given to the defendant, on the grounds that it was illegally performed.

At the end of the hearing, the defendant's motion was denied as to the statement and the Court found that the police had probable cause for the arrest and there was enough evidence for the jury to find that the breathalyzer test was performed within two hours after arrest. The Court reserved decision on that portion of the motion which requested suppression of the results of the breathalyzer, on the grounds that it was illegally performed because the People failed to prove that the defendant consented to the test. The People contend that no proof of consent is necessary to prove legality and, if there was a refusal, the burden of that proof was upon the defendant.

Section 1194 sub. (1) of Vehicle and Traffic Law provides that such consent is deemed and sub. (2) provides that in the event the defendant refuses to take the test it shall not be given. These two sections are not in conflict with one another.

It is clear that there is no constitutional prohibition against giving such a test without defendant's consent. (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908).

The defendant argues that there is a statutory requirement for the People to first request defendant's consent and that in order to prove the legality of the test the People must first prove that they requested defendant's consent to take the test and that he consented.

In the legislative reports to the 1953 Session of the N.Y.S. Legislature made by the Joint Legislative Committee on Motor Vehicle Problems (McKinney's Sessions Laws of N.Y.) the committee clearly stated, page 1928, "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. (emphasis supplied). 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."

The committee also stated, page 1917: "While it is the conclusion of this committee that a person's constitutional rights are not violated if he is compelled to submit to a chemical test against his will, the bill is drafted to avoid this problem. . . . Under the committee's bill an individual is not compelled to submit to a chemical test. The accused may refuse to take the test, but if he refuses his license to drive will be revoked."

This report was the basis for the adoption of Chapter 854 of 1953 amending the Vehicle and Traffic Law by adding a new Section 71a, the section from which Section 1194 had...

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2 cases
  • People v. Rosario
    • United States
    • New York City Court
    • 30 d4 Julho d4 1987
    ...v. Kates, 53 N.Y.2d at 595, 444 N.Y.S.2d 446, 428 N.E.2d 852; People v. Hall, 91 A.D.2d at 1003, 457 N.Y.S.2d 580; People v. Kelty, 95 Misc.2d 246, 247-8, 406 N.Y.S.2d 972 (District Ct., Nassau Cty.1978) (no need to show that defendant was given opportunity to revoke deemed consent to testi......
  • People v. Pecora
    • United States
    • New York Town Court
    • 1 d4 Março d4 1984
    ...402; People v. Abramowitz, 58 A.D.2d 921, 396 N.Y.S.2d 729; People v. Brockum, 88 A.D.2d 697, 451 N.Y.S.2d 326; People v. Kelty, 95 Misc.2d 246, 406 N.Y.S.2d 972; Schmerber v. California (supra); South Dakota v. Nelville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748; People v. Kates (supra);......

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