People v. McGroder

CourtNew York Town Court
Citation81 Misc.2d 1081,367 N.Y.S.2d 714
Decision Date30 April 1975
PartiesPEOPLE of the State of New York, Plaintiff, v. Eugene B. McGRODER, Defendant.

Page 714

367 N.Y.S.2d 714
81 Misc.2d 1081
PEOPLE of the State of New York, Plaintiff,
v.
Eugene B. McGRODER, Defendant.
Webster Town Court, Monroe County.
April 30, 1975.

Page 715

Jack B. Lazarus, Dist. Atty. of Monroe County, Herbert LaPage, of counsel, for the People.

Robert Burkwit, Rochester, for defendant.

DECISION

C. BENN FORSYTH, Town Judge:

This case raises the issue of the right of the police to take a blood test from an unconscious defendant. Defendant has moved to suppress the results of the blood test on the grounds that his consent was never given.

Page 716

The facts are not in dispute. The officer came upon a three car accident. He opened the door of the defendant's car (the last of the three) and smelled liquor. The defendant was unconscious and never gained consciousness until some time after the blood test in question was taken. The officer called an ambulance and told the attendants to make sure the defendant was kept at the hospital until after a blood test could be taken. The officer arrived at the hospital about one half hour after the accident and signed the necessary forms authorizing the blood test. At the same time he filled out the uniform traffic ticket charging the defendant with driving while intoxicated. The blood test was shortly thereafter taken. The defendant seeks to suppress the results of that blood test.

The threshold question is whether or not an unconscious defendant can be arrested. § 1194 of the Vehicle and Traffic Law restricts blood tests to those taken after an arrest. The defendant contends that since he was unconscious, a valid arrest could not be made, as he could not be advised of the facts of the arrest as required by § 140.35 of the Criminal Procedure Law. The Court of Appeals has ruled that the obligation to advise the defendant of the fact and cause of his arrest, as prescribed by said § 140.35 are not jurisdictional. Thus, in the cases of Squadrito v. Griebsch (1 N.Y.2d 471, 154 N.Y.S.2d 37, 136 N.E.2d 504), and People v. Coffey (12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263), the Court of Appeals found that when verbal instruction as to the fact and cause of arrest were meaningless, such statements were not essential. In the case at bar, the defendant was unconscious. Verbal statements would have been entirely meaningless. The Court holds that they were not essential to an arrest in this situation.

An arrest is determined by conduct that occurs. As stated in People v. Cantor (36...

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2 practice notes
  • People v. Curran
    • United States
    • New York Supreme Court Appellate Division
    • 28 Octubre 1982
    ...position on this appeal, the trial court correctly assumed that an unconscious person can be placed under arrest (People v. McGroder, 81 Misc.2d 1081, 367 N.Y.S.2d 714; cf. People v. Kates, 53 N.Y.2d 591, 444 N.Y.S.2d 446, 428 N.E.2d 852). Once a driver of a motor vehicle is arrested, the a......
  • People v. Kelty
    • United States
    • New York District Court
    • 30 Junio 1978
    ...Vehicle and Traffic Law requires a refusal by a defendant. The legislation does not require an affirmative consent. (People v. McGroder, 81 Misc.2d 1081, 367 N.Y.S.2d 714). In that case the Court accepted a blood test taken from an unconscious In a hearing such as this, the People have to s......
2 cases
  • People v. Curran
    • United States
    • New York Supreme Court Appellate Division
    • 28 Octubre 1982
    ...position on this appeal, the trial court correctly assumed that an unconscious person can be placed under arrest (People v. McGroder, 81 Misc.2d 1081, 367 N.Y.S.2d 714; cf. People v. Kates, 53 N.Y.2d 591, 444 N.Y.S.2d 446, 428 N.E.2d 852). Once a driver of a motor vehicle is arrested, the a......
  • People v. Kelty
    • United States
    • New York District Court
    • 30 Junio 1978
    ...Vehicle and Traffic Law requires a refusal by a defendant. The legislation does not require an affirmative consent. (People v. McGroder, 81 Misc.2d 1081, 367 N.Y.S.2d 714). In that case the Court accepted a blood test taken from an unconscious In a hearing such as this, the People have to s......

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