People v. Martin
| Decision Date | 14 April 1989 |
| Citation | 540 N.Y.S.2d 412,143 Misc.2d 341 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. David J. MARTIN, Defendant. |
| Court | New York Villiage Court |
Stephen R. Sirkin, Dist. Atty. (Richard M. Healy, Asst. Dist. Atty., of counsel), for plaintiff.
John A.R. Walsh, Ontario, (Sally A. Broyles, Williamson, of counsel), for defendant.
The defendant was arrested August 28, 1988 and charged with Driving While Intoxicated, Failure to Comply with the Direction of a Police Officer and Following Too Closely. The Court has previously ruled that the initial stop of the defendant's motor vehicle and his subsequent arrest were made upon probable cause. The defendant refused to submit to a chemical test to determine his blood alcohol content.
Defendant has now submitted a motion to the Court requesting that all evidence of his refusal to submit to a blood alcohol test be excluded at any subsequent trial, that the District Attorney be prohibited from mentioning the refusal in his opening or closing statements, that the Court refrain from charging the jury as to any refusal, and that, if the District Attorney opposes the motion, he be accorded a pre-trial hearing on these issues. The basis for this motion, defendant alleges, is that he was deprived of an opportunity to have a meaningful consultation with an attorney before being required to submit to the blood alcohol test after he made a request to so consult, and the affidavits supporting the motion contain allegations of fact which, if true, would support such a contention. The defendant alleges that the police action in so denying him access to counsel violated his Sixth Amendment right to the assistance of counsel.
1. Is evidence of a refusal to submit to a chemical test to determine a suspect's 2. What are the rights of a prosecuting attorney to comment on such issues in his opening and closing statement, and his right to request a charge to the jury as to the inferences it may draw from such a refusal?
blood alcohol content admissible upon trial pursuant to Vehicle and Traffic Law Section 1194(2)(f) if the defendant's right to consult with counsel prior to such a test is denied by police officials?
3. Upon the filing of a motion alleging certain facts, which, if proven, would establish the denial of an opportunity to consult with an attorney before taking the blood alcohol test, is a defendant entitled to a pre-trial hearing to determine whether or not evidence of such refusal should be submitted at trial?
Subdivision 2(f) of Section 1194 of the Vehicle and Traffic Law states that evidence of a defendant's refusal to submit to a chemical test to determine alcoholic content of his blood shall be admissible in any trial based upon a violation of Section 1192 of the Vehicle and Traffic Law, provided the defendant is given sufficient warning, in clear and unequivocal language, of the effect of such refusal. This section of law has been declared constitutional by the Court of Appeals. People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584. That Court held that while a statement of refusal might be considered to be "communicative or testimonial" it was not a violation of defendant's Fifth Amendment rights to admit such evidence because "only ... (such) evidence which has been compelled is excludable in a criminal proceeding" (supra, at 107, 412 N.Y.S.2d 845, 385 N.E.2d 584). "It is only communicative or testimonial evidence that has been extracted from the defendant by compulsion in some form that falls before the constitutional proscriptions". Supra, at 107, 412 N.Y.S.2d 845, 385 N.E.2d 584, citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, which held that a forcible withdrawal of blood for analysis purposes did not violate the Fifth Amendment privilege against self-incrimination, the Thomas Court reasoned that a defendant has no constitutional right not to take the test. This being true, the Court stated "hence comment on his refusal represents no infringement of privilege or right". (Supra, at 109, 412 N.Y.S.2d 845, 385 N.E.2d 584.) In this Court's opinion, these cases are dispositive of the issue of whether a forced chemical test, or the refusal to take one, violates defendant's Fifth Amendment privilege against self-incrimination.
These cases, however, are not dispositive of a defendant's Sixth Amendment right to the assistance of counsel. A leading case on this subject, as it pertains to chemical tests to determine intoxication is People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351. In that case a defendant made a request to telephone an attorney before submitting to a breathalizer test, but was refused, and thereafter he took the test. The Court of Appeals, in suppressing the result of such test, stated "law enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand". (Supra, at 227, 292 N.Y.S.2d 416, 239 N.E.2d 351.) Such conduct, the Court held, violated his privilege of access to counsel.
The Court of Appeals has held that the request to take a breathalizer test is not a "critical stage" of the proceedings within the meaning of the Sixth Amendment, inasmuch as no judicial proceedings have yet been commenced. In People v. Shaw, 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650, the Court held that "the Sixth Amendment does not require that the defendant be afforded counsel at this stage of the proceedings". The Court went on to say, however, that "a defendant who has been arrested for driving while intoxicated, but not yet formally charged in Court, generally has the right to consult with a lawyer before deciding whether or not to consent to a sobriety test, if he requests assistance of counsel ". (Emphasis supplied.) (Supra, at 1033-1034, 534 N.Y.S.2d 929, 531 N.E.2d 650, citing People v. Gursey, supra). Similarly, a New York Court has held that if a defendant is accorded the right to consult with an attorney who advises the defendant not to submit to the test, and if the defendant of his own volition thereafter does consent to take such a test, the results should not be suppressed. People v. Nigohosian, 138 Misc.2d 843, 525 N.Y.S.2d 556.
The Court has been cited People v. Houghland, 79 Misc.2d 868, 361 N.Y.S.2d 827, as authority for the proposition that defendant is entitled to access to counsel and to specific advice that he is so entitled before being asked to submit to a chemical test. That Court held that the refusal to take the test is an admission against penal interest and requires full warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 before such a refusal can be entered into evidence. This Court holds that such is not the law in this state in light of the holding of the Court of Appeals in People v. Shaw, supra, People v. Hager, 69 N.Y.2d 141, 512 N.Y.S.2d 794, 505 N.E.2d 237, and Schmerber v. California, supra.
This Court does hold, however, that a defendant has a qualified right to consult with couns...
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