People v. Robles

• Decision Date: 17 February 1999
• Citation: 180 Misc.2d 512,691 N.Y.S.2d 697
• Parties: , The PEOPLE of the State of New York, Plaintiff, v. Rafael ROBLES, Defendant. Bronx County
• Court: New York City Court

Page 697

691 N.Y.S.2d 697

180 Misc.2d 512, The PEOPLE of the State of New York, Plaintiff, v. Rafael ROBLES, Defendant.

Criminal Court, City of New York,

Bronx County.

Feb. 17, 1999.

Legal Aid Society, Bronx (Andrea S. Glenn of counsel), for defendant.

Robert T. Johnson, District Attorney of Bronx County (Jennifer S. Ng of counsel), for plaintiff.

ETHAN GREENBERG, J.

A defendant is arrested for driving while intoxicated. He is not given Miranda warnings. He is given inadequate "refusal" warnings in connection with a request by the police that defendant consent to submit to a chemical "breathalyzer" test for the presence of alcohol in his system. Defendant (who is being videotaped) answers the inadequate refusal warnings by making several non-responsive but incriminatory remarks in what appears to be a This question is presented by the case of Rafael Robles and it appears to be a question of first impression. Much like the issue presented in the recent case of People v. Berg, N.Y.L.J., Feb. 24, 1999, at 26, col. 1 (C.A.N.Y. Feb 23, 1999), the question presented here "centers on the intersection of two important interests: the prosecution of drunk drivers, and the constitutional privilege against self-incrimination." For the reasons set forth herein, this Court finds that the People may present a properly redacted version of the videotape at trial.

                mildly drunken fashion.  All concerned agree that evidence of the defendant's refusal to take the chemical test is barred at trial by Vehicle and Traffic Law ("VTL") Section 1194(2)(f) because of the inadequate refusal warnings.  The open question presented is this:  Can the People nevertheless properly present select portions of the videotape at trial in order to prove defendant's intoxication, provided that the videotape is redacted so as to eliminate those passages that indicate that defendant was asked and refused to submit to the chemical test?   Or would the presentation of the redacted videotape at trial violate either 1) the statutory bar against evidence of refusal established by VTL § 1194(2)(f), or 2) defendant's right against self-incrimination
                

I. THE STATUTORY SCHEME

It is now well-settled that where a defendant has been properly arrested based on probable cause for the crime of driving while intoxicated, the police may ask the defendant to consent to submit to a chemical test for the presence of alcohol in the defendant's system, and the defendant has no constitutional right to refuse. This is so because a chemical test does not require defendant to provide evidence of a testimonial or communicative character and therefore does not implicate defendant's right against self-incrimination. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584 (1978), appeal dismissed, Thomas v. New York, 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 (1979); People v. Rosario, 136 Misc.2d 445, 518 N.Y.S.2d 906 (Crim.Ct., Bronx Co.1987).

New York's Vehicle and Traffic Law sets up a statutory scheme whereby a defendant who has been arrested for driving while intoxicated will not be forced to take a chemical test for alcohol but will face certain adverse consequences if he refuses to take such a test. Section 1194(2)(b) of New York's Vehicle and Traffic Law requires in substance that a defendant who has been arrested on a charge of drunken driving shall be advised that his (or her) driver's license will be suspended for refusal to take a chemical test whether or not the defendant is subsequently found guilty of the criminal charge. If the defendant nevertheless refuses to take the chemical test, Section 1194 provides that the test shall not be given but that the police shall immediately prepare a written report of the defendant's refusal. Upon arraignment on the criminal charge of driving while intoxicated, the defendant's license will be suspended by the court pending further administrative proceedings regarding the suspension before the Department of Motor Vehicles. See generally P. Gerstenzang, Handling the DWI Case in New York (1998--99 Ed.) § 41.1.

Section 1194(2)(f) of the Vehicle and Traffic Law further provides that evidence of the defendant's refusal to submit to a chemical test shall be admissible at the defendant's trial on the criminal charge of driving while intoxicated, but only upon a showing by the People that the defendant persisted in refusing to take the test after being given sufficient warning in clear and unequivocal language ¹ of the effect of such refusal. Specifically, § 1194(2)(f) provides:

Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of eleven hundred ninety-two of this article but only 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.

The Vehicle and Traffic Law permits evidence of defendant's refusal to be admitted at trial on the theory that such a refusal evinces the defendant's consciousness of guilt. See People v. Ferrara, 158 Misc.2d 671, 602 N.Y.S.2d 86 (Crim.Ct., Richmond Co.1993). It has become common practice for defendants to request and for the courts to conduct pre-trial hearings on the issue of the admissibility of a defendant's refusal to consent to a chemical test. See People v. Cruz, 134 Misc.2d 115, 509 N.Y.S.2d 1002 (Crim.Ct., N.Y.Co.1986) (defendant entitled to pretrial hearing regarding admissibility of test refusal). At such a hearing, pursuant to VTL § 1194(2)(f), the People must show that proper "refusal" warnings--warnings that advise the defendant of the adverse consequences that will follow a refusal to take the chemical test--were given and that defendant then refused to take the test. These hearings have presented a variety of issues, such as whether complete warnings were given, see, e.g., People v. Pagan, 165 Misc.2d 255, 629 N.Y.S.2d 656 (Crim. Ct., Queens Co.1995), and whether the translation of the warnings for a non-English speaking defendant was adequate, see, e.g., People v. Niedzwiecki, 127 Misc.2d 919, 487 N.Y.S.2d 694 (Crim Ct., Queens Co.1985). Where the People do not prove that sufficient warnings were given, evidence of defendant's refusal is not permitted at trial. See, e.g., People v. Boone, 71 A.D.2d 859, 419 N.Y.S.2d 187 (2nd Dep't 1979).

II FACTUAL AND PROCEDURAL BACKGROUND

Defendant Rafael Robles was arrested on or about January 14, 1998 and was charged with violations of Penal Law Section 230.03 (Patronizing a Prostitute, a misdemeanor) and Vehicle and Traffic Law Section 1192(3) (Operating a Motor Vehicle While Under the Influence of Alcohol, also a misdemeanor.)

Defendant refused to submit to a chemical test and upon arraignment his license was duly suspended. Defendant moved by notice of motion dated April 6, 1998 for an order suppressing any statements made by the defendant and any evidence of his refusal. A hearing was ordered. The hearing was conducted before this Court on October 27 and 28 of 1998. At the outset of the hearing the specific nature of defendant's application was clarified. Defendant moved on two grounds to suppress evidence of the statements that were made by him on videotape at the time he was given refusal warnings. First, defendant asserted that he was arrested without probable cause and that his videotaped statements should therefore be suppressed as the fruit of his illegal arrest pursuant to Dunaway v. New York, 442 U.S. 200, 99 - Defendant's Arrest -

S.Ct. 2248, 60 L.Ed.2d 824 (1979) and its progeny. Second, defendant asserted that the same videotaped statements should also be suppressed pursuant to VTL § 1194(2)(f) as evidence of a refusal to consent to a chemical test that was made only after inadequate refusal warnings were given.

At the hearing the People presented the testimony of one witness, the arresting officer Police Officer Joseph Rosenberger, together with a videotape of the defendant described below. Defendant presented no evidence. The arresting officer's testimony showed that shortly after midnight on January 14, 1998 the defendant drove his car onto the "set" of an undercover police prostitution operation (known as "Operation Losing Prostitution") located near East 242nd Street and White Plains Road in the Bronx. Defendant approached a female undercover officer who was posing as a prostitute and offered to pay her twenty dollars in return for a sex act. The undercover officer communicated to other police officers by pre-arranged signal that an offer had been made, and the other officers moved in and stopped the defendant within a few seconds after the defendant's offer. Officer Rosenberg approached defendant who was still seated in the driver's seat of his car. The car's engine was still running. Officer Rosenberg conferred briefly by walkie-talkie with the undercover officer who confirmed that defendant had offered her money for sex. The defendant smelled strongly of alcohol and appeared to be very intoxicated in that his eyes were bloodshot and he was "swaying" and "babbling". Officer Rosenberg asked the defendant to step out of his car. When the car door opened, defendant fell face first into the street and had to be pulled to his feet by the police. A preliminary field test (the results of which are not admissible at trial) was administered and defendant's blood alcohol content was measured at .15 of one percent. (Blood alcohol content of .10 of one percent or greater is presumptive evidence of intoxication.) Defendant was arrested for the crimes of Patronizing a Prostitute and Driving While Intoxicated and taken to a police station known as Highway One. The police did not read defendant his Miranda rights at this time or at any subsequent time.

The police attempted to give defendant his...