People v. Shaw

• Decision Date: 28 December 1984
• Citation: 127 Misc.2d 530,486 N.Y.S.2d 607
• Parties: The PEOPLE of the State of New York v. Wayne E. SHAW, Defendant.
• Court: New York Villiage Court

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.

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 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; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The more difficult question is determining what qualifies as a critical stage.

For example, in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, the Supreme Court ruled that an Alabama preliminary hearing was not required to present defenses, even though testimony taken in the absence of counsel could not be used at the trial. In so holding, the Court stated that in spite of these facts, it:

"does not follow that the Alabama preliminary hearing is not a 'critical stage' of the State's criminal process. The determination whether the hearing is a 'critical stage' requiring the provision of counsel depends, as noted, upon an analysis 'whether potential substantial prejudice to defendant's rights inheres in the * * * confrontation and the ability of counsel to help avoid that prejudice.' United States v. Wade, supra, 388 U.S. [218] at 227, 87 S.Ct. [1926] at 1932 . Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that...