People v. Morales

• Decision Date: 21 April 1994
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Angel MORALES, Defendant.
• Court: New York City Court

Page 980

611 N.Y.S.2d 980

161 Misc.2d 128

The PEOPLE of the State of New York, Plaintiff, v. Angel MORALES, Defendant.

Criminal Court of the City of New York,

Kings County, AP 2.

April 21, 1994.

Kenneth Jaffe, Brooklyn, for defendant.

Charles J. Hynes, Dist. Atty. of Kings County by Gerald Allen, Asst. Dist. Atty., for the People.

WILLIAM GARNETT, Judge.

If a defendant is asked to take a breathalyzer test more than two hours after his or her arrest and the defendant refuses, may the prosecution use the fact of that refusal as consciousness of guilt evidence pursuant to Vehicle and Traffic Law § 1194(2)(f)?

At 10:20 p.m., on December 11, 1993, the defendant was arrested for driving while intoxicated. V.T.L. § 1192(3). On December 12, 1993, at 12:50 a.m., two and one half hours after his arrest, the defendant refused to take a breathalyzer test to determine the alcoholic content of his blood.

The People concede that this chemical test was proffered more than two hours after the defendant's arrest.

Citing statutory and case law authority, the defense has moved to preclude the prosecution's use of the defendant's refusal as evidence of guilt.

Relying on People v. Brol, 81 A.D.2d 739, 438 N.Y.S.2d 424 (4th Dept., 1981), the defense contends that the two hour limitation contained in V.T.L. § 1194(2)(a)(1) precludes the evidentiary use of a defendant's refusal when the test is offered more than two hours after a defendant's arrest. In essence, the defense would interpret the two hour limitation in this section to deny the police's authority to proffer a chemical test after that two hour period has elapsed.

The People aver that § 1194(2)(a)(1) has a very narrow applicability. It is argued that, in People v. Mills, 124 A.D.2d 600, 507 N.Y.S.2d 743 (2nd Dept., 1986), the Appellate Division severely circumscribed the ambit of this statute to apply only in cases in which the defendant is incapable of giving her or his consent. Thus, if this time limitation is only applicable in cases of "implied consent," then an officer's authority to offer a chemical test to a defendant who is capable of giving express consent is not barred by the time limitation in this statute.

STATUTORY STRUCTURE

Section 1194(2)(a) provides that: "[A]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test ...". Thus, a motor vehicle operator impliedly consents to the administration of a chemical test to determine the alcoholic content of his or her blood. Thereafter, subparagraph (1) of this statute prescribes the conditions precedent to the officer's reliance on the implied consent authority contained in the statute. One of those conditions is that the test must be administered within two hours of the defendant's arrest.

Section 1194(2)(b) provides that when an individual is proffered a test and refuses, the test shall not be given and a written report of that refusal must be made. Subdivision (2)(c) of this statute enumerates the issues which are the subject of an administrative hearing to determine whether a driver's license should be revoked after a refusal to take a chemical test. Revocation does not require an affirmative finding that the chemical test was offered within two hours of the driver's arrest.

Subdivision 3 of V.T.L. § 1194 establishes a procedure for obtaining a court-ordered chemical test. Significantly, this section of the statute does not preclude an application for a court order or the administration of a chemical test after the passage of any period of time.

Section 1194(2)(f) sanctions the use of a defendant's refusal to take a chemical test as evidence of guilt when a person is being tried for any violation of V.T.L. § 1192. This evidence may be received if the defendant was warned of the consequences of her or his refusal and that, after being admonished, the defendant persisted in his or her refusal. The statute does not incorporate the time limitation contained in V.T.L. § 1194(2)(a)(1) either explicitly or by reference.

The two hour rule had its genesis in V.T.L. § 70(5) which provided that chemical evidence was admissible only if the test was performed within two hours of arrest (L.1941, ch. 726, eff. July 1, 1941). Clearly, this was a rule of an evidentiary nature unrelated to any "implied consent" provision. In 1970, a telling development occurred. The legislature took the two hour provision out of the successor statute to V.T.L. § 70(5), i.e., V.T.L. former § 1195(1), and moved it into the implied consent provision contained in § 1194. At the same time, the legislature enacted a predecessor statute to the present V.T.L. § 1192(2). Thus, the two hour rule was moved from the evidentiary statute and was incorporated into the implied consent provision. This realignment of statutory provisions was of substantial moment and An examination of the structure of V.T.L. § 1194 demonstrates that this statute discretely deals with the collection of evidence from drivers who have been charged with violating any of the provisions of V.T.L. § 1192. In cases in which the driver is incapable of consenting, the police have authority bottomed on the provisions of V.T.L. § 1194(2)(a). If the driver is capable of consent, then the procedures delineated in subdivision (2)(b) are applicable. If the driver is incapable of giving consent and the two hour period contained in § 1194(2)(a) has expired or the sentient driver refuses to take a chemical test, the police may then invoke, if applicable, the provisions of subdivision 3 which provides for a court order. Thus, § 1194 may be read to have segregated the three means by which the police may obtain chemical test evidence, i.e. implied consent, express consent and court order.

                impact.   This change removed the two hour stricture from the overarching statute which provided for admissibility of chemical test evidence and wedded it with the statute which conferred authority on police officers to obtain relevant evidence of intoxication in cases where the police would have to rely upon implied consent because of the driver's inability to acquiesce in or refuse a chemical test
                

CASE LAW

In 1986, the Appellate Division, Second Department interpreted V.T.L. § 1194(1), now V.T.L. § 1194(2)(a), to apply only when the driver is "either unconscious or otherwise incapable of giving consent ...". People v. Mills, 124 A.D.2d 600, 601, 507 N.Y.S.2d 743 (2nd Dept., 1986), leave to appeal dismissed, 69 N.Y.2d 953, 516 N.Y.S.2d 1037, 509 N.E.2d 372 (1987). Thus, where a driver explicitly consents to the administration of a chemical test, the time constraint contained in the "implied consent" section is inapposite. Therefore, if express consent is obtained, then the results are admissible despite the fact that more than two hours have passed since the defendant's arrest. The Appellate Division in Mills cited People v. Kates, 53 N.Y.2d 591, 444 N.Y.S.2d 446, 428 N.E.2d 852 (1981), as authority for its narrowing interpretation of the two hour limitation. In examining the structure of V.T.L. § 1194(1), now V.T.L. §§ 1194(2)(a) and (2)(b), the Court of Appeals, in Kates, acknowledged that the wording of the statute "was carefully chosen" to distinguish between instances of implied consent and situations in which a driver was capable of giving his consent. Id. at 595, 444 N.Y.S.2d 446, 428 N.E.2d 852. The legislature properly distinguished between "the conscious driver and the unconscious or incapacitated driver." Id. at 596, 444 N.Y.S.2d 446, 428 N.E.2d 852. Structurally, the present statute still makes that rational distinction in §§ 1194(2)(a) and (2)(b).

The other Appellate Divisions which have addressed the two hour issue are split. In the most recent pronouncement, the Third Department had adopted the Mills interpretation of the implied consent statute. People v. Abel, 166 A.D.2d 841, 563 N.Y.S.2d 531 (3rd Dept., 1990). The significance of this endorsement of Mills was somewhat lessened by the failure of the court to overrule, or even cite, an earlier Third Department case which would appear to countenance adherence to the two hour limitation. People v. Keane, 76 A.D.2d 963, 428 N.Y.S.2d 972 (3rd Dept., 1980).

The applicability of the two hour rule was further limited when the Appellate Division, Second Department extended the Mills rationale by ruling that the two hour time limitation does not apply to court-ordered chemical tests. People v. McGrath, 135 A.D.2d 60, 524 N.Y.S.2d 214 (2nd Dept., 1988), aff'd on the opinion below, 73 N.Y.2d 826, 537 N.Y.S.2d 480, 534 N.E.2d 318 (1988). Thus, with the apparent approbation of the Court of Appeals, the two hour limitation has been confined only to cases of implied consent. In essence, these rulings have transformed the two hour rule from one of evidentiary significance to one of procedural consequence. The rule no longer has evidentiary significance because chemical test results obtained more than two hours after a defendant's arrest by express consent or court order are now admissible. See People v. Johnson, NYLJ, 4/15/91, p. 26, col. 1 (Supreme Court, N.Y.County); People v. Dillin, 150 Misc.2d 311, 567 N.Y.S.2d 991 (Criminal Court, New York County 1991). However, the rule has been interpreted to delimit the period in which the police may invoke their "implied consent" authority to perform a chemical test on a driver who is incapable of giving consent.

In People v. Brol, 81 A.D.2d 739, 438 N.Y.S.2d 424 (4th Dept., 1981), the Appellate Division, Fourth Department endorsed an expansive application of the two hour rule and found inadmissible any refusal which would be obtained more than two hours after the defendant's arrest. The court reasoned: "But if the test's results are incompetent if the test is not administered within the two-hour limit, evidence of the refusal is similarly incompetent * * * against [a] defendant unless obtained within two hours of the arrest." Id. at 740, ...