People v. Odum

• Decision Date: 03 May 2018
• Docket Number: No. 46,46
• Citation: 78 N.Y.S.3d 252,31 N.Y.3d 344,102 N.E.3d 1034
• Parties: The PEOPLE of the State of New York, Appellant, v. Donald ODUM, Respondent.
• Court: New York Court of Appeals Court of Appeals

31 N.Y.3d 344
102 N.E.3d 1034
78 N.Y.S.3d 252

The PEOPLE of the State of New York, Appellant,
v.
Donald ODUM, Respondent.

No. 46

Court of Appeals of New York.

Decided May 3, 2018

102 N.E.3d 1035

Darcel D. Clark, District Attorney, Bronx (Stanley R. Kaplan and Nancy D. Killian of counsel), for appellant.

The Bronx Defenders, Bronx (V. Marika Meis of counsel), for respondent.

OPINION OF THE COURT

STEIN, J.

31 N.Y.3d 346

Vehicle and Traffic Law §§ 1194 and 1195 generally govern the administration and admissibility of chemical breath tests used to determine blood alcohol content. Section 1195(1) provides that the results of such tests are admissible in evidence at a criminal trial if the tests are "administered pursuant to the provisions of section [1194]." The results of a test also may be admissible absent compliance with section 1194 where a defendant has voluntarily consented to the test because section "1194 ... ha[s] no application where the defendant expressly and voluntarily consented to a [chemical] test" ( People v. Atkins, 85 N.Y.2d 1007, 1008, 630 N.Y.S.2d 965, 654 N.E.2d 1213 [1995] ). Here, because the breathalyzer test was not administered in accordance with the

78 N.Y.S.3d 254

requirements of section 1194 and defendant's consent to take the test was not voluntary, as required by Atkins, the results of the test were properly suppressed.

102 N.E.3d 1036

I.

In 2014, defendant was arrested on various charges, including operating a motor vehicle while under the influence of alcohol. More than two hours after his arrest, he was informed that police wanted him to take a breathalyzer test and was asked whether he would "take this test? Yes or no?" After defendant answered "No," he was given the "refusal warnings" set forth in Vehicle and Traffic Law § 1194 —namely, he was warned that, if he refused "to submit to the test," the result would be "the immediate suspension or subsequent revocation of [his] driver's license or operating privileges whether or not [he was] found guilty of the charges for which [he had] been arrested." In addition, he was warned—inaccurately—that if he "refuse[d] to submit to the test or any portion thereof, it w[ould] be introduced as evidence against [him] in any trial proceeding resulting from the arrest." Defendant then agreed to take the test and provided a breath sample, which showed that his blood alcohol level was above the legal limit.

Defendant subsequently moved to suppress the videotaped recording of the administration of the breathalyzer test, the test results, and all statements that he made to the arresting officer, including his initial refusal to take the test. Defendant asserted that, pursuant to Vehicle and Traffic Law § 1194, because more than two hours had passed between the time of his arrest and the request that he take the breathalyzer test, the officer administering the test should not have advised him

31 N.Y.3d 347

that, if he refused to take it, his driver's license would be suspended and the refusal could be used against him in court. Defendant maintained that the refusal warnings were inappropriate after two hours, and rendered his consent to the test involuntary. Criminal Court, adopting a Judicial Hearing Officer's decision, granted the motion to suppress both defendant's initial refusal to take the test and the test results. The court ruled that, "[i]n light of the uncontradicted evidence that the refusal occurred more than two hours after arrest, suppression of the refusal is warranted." The court further concluded that the breathalyzer test results should have been suppressed because "the warnings given by the police were coercive."

The People moved to reargue, asserting that, although the refusal "warnings were most certainly designed to induce submission to the test [and][i]t is undisputed that they do threaten the operator-accused with adverse consequences [for refusal] to consent," the warnings do not render a driver's consent involuntary because they merely inform the driver of the privilege that may be lost due to refusal, and that the refusal can be used against the driver in any subsequent legal proceedings. Criminal Court denied the motion to reargue, concluding that under Atkins, "where the chemical test is administered more than two hours after an arrest, admissibility of the results requires that the People show that consent was express and voluntary." The court then held that the People failed to meet their burden of demonstrating that defendant's consent was "voluntary and not the result of coercive conduct by the officer" because defendant consented "only after [the officer] gave the improper warnings."

Upon the People's appeal, the Appellate Term, First Department affirmed, holding that Criminal Court "properly suppressed the breathalyzer test results" because defendant's consent, given in response to "inappropriate

78 N.Y.S.3d 255

warnings," was involuntary. ( 54 Misc 3d 128[A], 2016 NY Slip Op 51806[U], *1, 2016 WL 7434671 [App Term, 1st Dept 2016] ). A Judge of this Court thereafter granted the People leave to appeal ( 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ).

102 N.E.3d 1037

II.

In order to combat driving while intoxicated, which we have long recognized as a "menace" ( People v. Ward, 307 N.Y. 73, 77, 120 N.E.2d 211 [1954] ), "law enforcement agencies have been granted statutory authority (see Vehicle and Traffic Law § 1194 ) to use an important investigative tool—chemical tests to determine blood alcohol content" (

31 N.Y.3d 348

People v. Washington, 23 N.Y.3d 228, 231, 989 N.Y.S.2d 670, 12 N.E.3d 1099 [2014] ). As relevant here, Vehicle and Traffic Law § 1194(2)(a)(1) —the "deemed consent provision"—states:

"Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test... for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer ...

having reasonable grounds to believe such person to have been operating in violation of any subdivision of section [1192] of this article and within two hours after such person has been placed under arrest for any such violation" (emphasis added).

Section 1194(2)(b)(1) provides that the test shall not be given if a person who is under arrest and who has "been informed that the person's license ... shall be immediately suspended and subsequently revoked, ... whether or not the person is found guilty of the charge for which such person is arrested or detained," nevertheless "refuses to submit to such chemical test." "Evidence of a refusal to submit to such chemical test ... shall be admissible" at trial, "upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal" (id. § 1194[2][f] ).

This Court has explained that "[s]ection 1194 'grants a motorist a qualified right to decline to voluntarily take a chemical test' after being warned that a refusal 'will result in the immediate suspension and ultimate revocation of the motorist's driver's license for one year,' along with evidence of the refusal being admissible at any subsequent criminal trial" ( Washington, 23 N.Y.3d at 231, 989 N.Y.S.2d 670, 12 N.E.3d 1099, quoting People v. Smith, 18 N.Y.3d 544, 548, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012] ). The statute "is designed to encourage those suspected of alcohol-related driving offenses to comply with requests to submit to chemical tests in order to obviate the need for securing court orders authorizing blood tests" ( Washington, 23 N.Y.3d at 231, 989 N.Y.S.2d 670, 12 N.E.3d 1099 ; see also Sponsor's Mem, Bill Jacket, L 1968, ch 85), or " 'the need for the use of force by police officers if an individual in a drunken condition should refuse to submit to the test' " ( People v. Kates, 53 N.Y.2d 591, 596, 444 N.Y.S.2d 446, 428 N.E.2d 852 [1981], quoting Interim Rep of N.Y. St Joint Legis Comm on Motor Veh Problems, 1953 N.Y. Legis Doc No. 25 at 35). In that regard, we have repeatedly stated that "there is no constitutional right to avoid submitting to a chemical test of this nature" ( Smith, 18 N.Y.3d at 548, 942 N.Y.S.2d 426, 965 N.E.2d 928 ;

31 N.Y.3d 349

Kates, 53 N.Y.2d at 594–595, 444 N.Y.S.2d 446, 428 N.E.2d 852 ; People v. Thomas, 46 N.Y.2d 100, 109, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978], appeal dismissed 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 [1979] ; see also

78 N.Y.S.3d 256

Birchfield v. North Dakota, 579 U.S. ––––, 136 S.Ct. 2160, 2184, 195 L.Ed.2d 560 [2016] ["the Fourth Amendment...