People v. Shaw

CourtNew York Villiage Court
Citation127 Misc.2d 530,486 N.Y.S.2d 607
Decision Date28 December 1984
PartiesThe PEOPLE of the State of New York v. Wayne E. SHAW, Defendant.

Page 607

486 N.Y.S.2d 607
127 Misc.2d 530
The PEOPLE of the State of New York
v.
Wayne E. SHAW, Defendant.
Village Court of Village of New York Mills,
Oneida County.
Dec. 28, 1984.

Page 608

Barry M. Donalty, Oneida County Dist. Atty., Utica (Raymond A. Tarkowski, Asst. Dist. Atty., Utica, of counsel), for the People.

Frank J. Nebush, Oneida County Public Defender, Utica, for defendant.

OPINION OF THE COURT

MAYNARD T. ROMAN, Village Justice.

The Defendant has moved to supress the results of a breathalyzer test. The evidence at the suppression hearing revealed that the defendant was involved in an automobile accident on October 1, 1982. After arriving on the scene, the Police Chief observed the defendant's behavior and placed him under arrest for Driving While Intoxicated. (Vehicle and Traffic Law section 1192, subdivision 3).

Following the arrest, the officer read a "DWI warning card" to the defendant which stated, inter alia, that refusal to submit to the chemical test could result in revocation of his license regardless of the outcome to the DWI charge and that his refusal to take the test could be introduced into evidence against him. The defendant initially refused to take the test. However, after again hearing the "DWI warning card" at the village police station, he consented to the test. At no time was the defendant advised of his right to counsel, asked if he wished to speak to an attorney, or advised his "Miranda" rights. The test results showed a .20% blood alcohol level, and defendant was also then charged with a violation of section 1192, subdivision 2 of the Vehicle and Traffic Law.

The defendant presents various arguments in support of suppression. Most of these have been reviewed by other New York Courts and can be summarily rejected. Thus, "in as much as the defendant has no constitutional right to refuse to take the test, the privilege against self incrimination is not applicable". People v. Thomas, 46 N.Y.2d 100, 106, 412 N.Y.S.2d 845, 385 N.E.2d 584, appeal dismissed 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127. Similarly, the mere "failure to inform an individual of his Miranda rights does not preclude the admission into evidence of his refusal to take a chemical test." Hoffman v. Melton, 81 A.D.2d 709, 710, 439 N.Y.S.2d 449. Finally it, "is well established that express consent for withdrawal of a motor vehicle operator's blood is not constitutionally required [thus a] compelled blood test does not violate due process (Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448), nor does it violate the privilege against self incrimination or constitute an unreasonable search and seizure (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908)." People v. Kates, 77 A.D.2d 417, 419, 433 N.Y.S.2d 938.

While the defendant's theories are somewhat interrelated, he does appear to present one argument which apparently has not been discussed in the reported decisions. Stripped to its bare essence, he contends that by reading the DWI warning to the defendant the State presented a one sided view of the consequences of refusing to take the test. Since only an attorney can assess the various evidentiary advantages of refusal to take the test, the State has engaged in affirmative conduct prejudicial to the defendant's rights. Thus, the State should also be required to inform the defendant of the potential benefits of a refusal, or, at a minimum, inform the defendant of his right to consult with counsel. To do neither is tantamount to impermissible compulsion.

An analysis of this argument must begin with an analysis of the general rules

Page 609

regarding the Sixth Amendment right to counsel. It is axiomatic that this right only attaches when the confrontation between the State and the accused reached a "critical stage." See, e.g. Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 158, 7 L.Ed.2d 114; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193;...

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3 practice notes
  • State v. Holland, No. 1
    • United States
    • Court of Appeals of Arizona
    • June 18, 1985
    ...penalty of 2.5 years, as compared with a license revocation in Campbell. As stated by the court in People v. Shaw, 127 Misc.2d 607, 486 N.Y.S.2d 607 "The argument here involves more. The failure to note the benefits of refusal [to take the test] can well result in a detriment to the de......
  • People v. Shaw
    • United States
    • New York County Court
    • October 31, 1986
    ...for defendant-respondent. JOHN L. MURAD, Judge. The People appeal from a decision and order of the Village Court of New York Mills, 127 Misc.2d 530, 486 N.Y.S.2d 607, granting defendant's motion to suppress results of a Breathalyzer test. On October 1st, 1982 defendant was arrested for driv......
  • People v. Shaw
    • United States
    • New York Court of Appeals
    • October 27, 1988
    ...right to counsel when requested to take the test. The trial court granted the defendant's motion and suppressed the results of the test (127 Misc.2d 530, 486 N.Y.S.2d 607). On appeal by the People, the County Court reversed (133 Misc.2d 862, 508 N.Y.S.2d 844). The defendant has appealed cla......
3 cases
  • State v. Holland, No. 1
    • United States
    • Court of Appeals of Arizona
    • June 18, 1985
    ...penalty of 2.5 years, as compared with a license revocation in Campbell. As stated by the court in People v. Shaw, 127 Misc.2d 607, 486 N.Y.S.2d 607 "The argument here involves more. The failure to note the benefits of refusal [to take the test] can well result in a detriment to the de......
  • People v. Shaw
    • United States
    • New York County Court
    • October 31, 1986
    ...for defendant-respondent. JOHN L. MURAD, Judge. The People appeal from a decision and order of the Village Court of New York Mills, 127 Misc.2d 530, 486 N.Y.S.2d 607, granting defendant's motion to suppress results of a Breathalyzer test. On October 1st, 1982 defendant was arrested for driv......
  • People v. Shaw
    • United States
    • New York Court of Appeals
    • October 27, 1988
    ...right to counsel when requested to take the test. The trial court granted the defendant's motion and suppressed the results of the test (127 Misc.2d 530, 486 N.Y.S.2d 607). On appeal by the People, the County Court reversed (133 Misc.2d 862, 508 N.Y.S.2d 844). The defendant has appealed cla......

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