People v. Rodriguez

• Decision Date: 25 February 1975
• Citation: 80 Misc.2d 1060,364 N.Y.S.2d 786
• Parties: The PEOPLE of the State of New York v. Jose RODRIGUEZ, Defendant.
• Court: New York Supreme Court

Page 786

364 N.Y.S.2d 786

80 Misc.2d 1060

The PEOPLE of the State of New York v. Jose RODRIGUEZ, Defendant.

Supreme Court, Trial Term, Bronx County, Part XII.

Feb. 25, 1975.

Mario Merola, Dist. Atty. by Robert Beck, Asst. Dist. Atty., for the people.

William J. Gallagher, Legal Aid Society, New York City, for defendant by Lawrence Vogelman, New York City, of counsel.

MAX BLOOM, Justice:

Defendant stands indicted for resisting arrest and for operating a motor vehicle while intoxicated. Within the time prescribed by statute (Vehicle and Traffic Law, Section 1194, subd. 1 (1) and (2)), defendant was requested to take 'a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic or drug content of his blood * * *'. He refused to do so. He now moves to preclude the District Attorney from offering evidence of such refusal upon the trial, asserting that the final proviso of Section 1194, Subdivision 2, which authorizes the receipt of such evidence is violative of his Fifth Amendment rights.

So far as is here pertinent, Section 1194 provides:

'Chemical tests

1. Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic or drug content of his blood provided that such test is administered at the direction of a police officer:

(1) having reasonable grounds to believe such person to have been driving in violation of any subdivision of section eleven hundred ninety-two and within two hours after such person has been placed under arrest for any such violation, or

(2) within two hours after a breath test, as provided in section eleven hundred ninety-three-a of this chapter, indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which he is a member.

2. If such person having been placed under arrest or after a breath test indicates the presence of alcohol in his system and having thereafter been requested to submit to such chemical test, refuses to submit to such chemical test, the test shall not be given and a report of such refusal shall be forwarded by the police officer under whose direction the test was requested to the commissioner within seventy-two hours and the commissioner shall revoke his license or permit to drive and any non-resident operating privilege; provided, however, the commissioner shall grant such person an opportunity to be heard, unless such opportunity is waived by such person, and Provided further, however, that evidence of such refusal to submit to such chemical test shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of this section or the provisions of section eleven hundred ninety-two of this chapter 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 his refusal.' (italics supplied).

Prior to the 1973 amendment (L.1973, Ch. 351) the sole penalty for refusal to take the chemical test was administrative. It resulted in revocation of the operator's driving license (Matter of Sanderspree v. Hults, 25 A.D.2d 702, 268 N.Y.S.2d 105) and such revocation might be imposed even though a subsequent criminal trial of the charge of driving a motor vehicle while intoxicated resulted in an acquittal (Matter of Anderson v. Macduff, 208 Misc. 271, 143 N.Y.S.2d 257).

True it is that an operator's license is regarded as property and, hence, the requirements of due process are applicable. Forfeiture can be invoked only after the hearing prescribed by statute (Matter of Moore v. Macduff, 309 N.Y. 35, 127 N.E.2d 741; Matter of Wignall v. Fletcher, 303 N.Y. 435, 103 N.E.2d 728). However, up to September 1, 1973, it was the only penalty susceptible of imposition. The 1973 amendment added new dimension by including the proviso that, proper warnings having been given, evidence of such refusal would be admissible upon the criminal trial.

There are only two appellate cases in this State which have dealt directly with the admissibility of a refusal to take the chemical test in question (People v. Stratton, 286 App.Div. 323, 143 N.Y.S.2d 362, affd. 1 N.Y.2d 664, 150 N.Y.S.2d 29, 133 N.E.2d 516; People v. Paddock, 29 N.Y.2d 504, 323 N.Y.S.2d 976, 272 N.E.2d 486). Both were decided prior to the 1973 amendment.

Stratton (supra) involved a vehicular homicide resulting from alleged criminal negligence. A physician was sent to see the defendant in jail shortly after the accident. He testified that he had requested permission to take a specimen of the defendant's blood so that its alcoholic content could be determined. Over objection the physician was permitted to state that the defendant had refused to grant such permission. The Court, which characterized this testimony 'as damning' held it to be incompetent for any purpose.

'The courts of this State have long and consistently held that under our self-incrimination laws the receipt of evidence in a criminal trial of a defendant's complete silence or refusal to answer is reversible error. (citation omitted) This has been on the theory that the fact that a defendant did what he had an absolute right to do cannot be used to create any unfavorable inference against him.' (286 App.Div. p. 326, 143 N.Y.S.2d p. 365)

Paddock (supra), which followed Stratton, involved a conviction by a Court of Special Sessions for drunken driving. On appeal the County Court of Wayne County reversed, holding that the admission of defendant's refusal to submit to a blood test was error. The Court of Appeals affirmed without opinion. Paddock merits comment only because of Judge Jasen's concurring opinion in which he expressly noted that 'since there is no constitutional right to refuse to submit to such a test, it necessarily follows that there can be no constitutional prohibitions to prevent comment upon the accused's failure to take the test.' (29 N.Y.2d p. 505, 323 N.Y.S.2d p. 977, 272 N.E.2d p. 486) This conclusion was bottomed on the premise that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, laid down the rule that there is no constitutional right or privilege which precludes a state from compelling a person suspected of operating a motor vehicle while intoxicated to submit to a blood test. By consequence concluded Judge Jasen, Stratton rested solely upon a statutory basis and 'the Legislature may, if it be so advised, correct this situation.' (29 N.Y.2d p. 506, 323 N.Y.S.2d p. 978, 272 N.E.2d p. 487)

So to read Schmerber is, we think, to read it over-broadly. That case involved claims asserted under the Fourth, Fifth, Sixth and Fourteenth Amendments. So far as concerns the Fifth Amendment--the only one with which here we are concerned--the Court held that:

'the...