People v. Smith

• Decision Date: 16 February 2012
• Citation: 942 N.Y.S.2d 426,18 N.Y.3d 544,965 N.E.2d 928,2012 N.Y. Slip Op. 01147
• Parties: The PEOPLE of the State of New York, Respondent, v. Howard K. SMITH, Appellant.
• Court: New York Court of Appeals Court of Appeals

18 N.Y.3d 544
2012 N.Y. Slip Op. 01147
942 N.Y.S.2d 426
965 N.E.2d 928

The PEOPLE of the State of New York, Respondent,
v.
Howard K. SMITH, Appellant.

Court of Appeals of New York.

Feb. 16, 2012.

[942 N.Y.S.2d 427]

Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh (Kathleen V. Wells of counsel), for appellant.

Thomas P. Zugibe, District Attorney, New City (Itamar J. Yeger of counsel), for respondent.

[18 N.Y.3d 546] OPINION OF THE COURT GRAFFEO, J.

[965 N.E.2d 929] As a consequence of a motor vehicle stop, defendant was convicted of driving while ability impaired. On appeal, he maintained that the trial court erred in permitting the People to introduce—as proof of consciousness of guilt—evidence that he refused to take a chemical breath test to determine his blood alcohol content when requested to do so by state troopers. We agree and we therefore reverse the conviction and remit for a new trial.

On March 28, 2007, at approximately 3:30 a.m., New York State troopers stopped defendant's vehicle on the Palisades Parkway in Rockland County for a window tinting violation. When the troopers smelled alcohol on defendant's breath, he was asked to exit his vehicle. After he failed field sobriety tests, defendant was arrested for driving while intoxicated (Vehicle and Traffic Law § 1192 [3] ). At the scene of the motor vehicle stop, the troopers administered Miranda warnings and chemical test warnings as contemplated in Vehicle and Traffic Law § 1194(2)(f).

The chemical test warnings informed defendant:

“You are under arrest for driving while intoxicated. I am going to ask you if you will submit to a chemical test to determine the alcohol and/or drug content of your blood. Before I do, I must advise you that a refusal to submit to a chemical test or any portion thereof will result in the immediate suspension and subsequent revocation of your license or operating privileges, whether or not you are found guilty of [18 N.Y.3d 547] the charge for which you were arrested. Your refusal to submit to a chemical test or any portion thereof can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest. Do you understand what I have told you? Will you submit to a chemical test for the purpose of determining the alcohol and/or drug content of your blood?”

Defendant stated that he understood the warnings but wanted to speak to his lawyer before deciding whether to take a chemical test.

[942 N.Y.S.2d 428]

[965 N.E.2d 930] Defendant was transported to the state police barracks where he was given chemical test warnings a second time and asked if he was willing to consent to a test. Defendant again indicated that he wished to telephone his attorney. Although he was permitted to use the telephone, defendant was unable to reach his lawyer. A half hour later, the troopers read the chemical test warnings a third time and sought an answer from defendant concerning whether he would take a chemical test. Defendant responded that he was waiting for his attorney to call him back. At this juncture, the troopers interpreted defendant's response as a refusal to submit to the test and they recorded that refusal on a form pursuant to Vehicle and Traffic Law § 1194(2)(b).

At a pretrial hearing in connection with his driving while intoxicated charge, defendant moved to preclude the People from introducing evidence at trial that he refused to take the chemical test. Defendant asserted that he had never actually declined to be tested but merely requested an opportunity to contact his attorney first, which request was initially granted by the troopers. Because he was never advised that his time to seek a consultation with an attorney had elapsed, defendant maintained that he was unaware that his response to the third request—that he was waiting to hear back from his lawyer—would be interpreted as a refusal to take the test. He therefore argued that the People should not be permitted to offer evidence that he declined to take a chemical test in order to establish consciousness of guilt.

Town Court denied defendant's motion to preclude, determining that defendant's conduct amounted to a constructive refusal to take a chemical test and, at the subsequent bench trial, the People elicited evidence to that effect. Defendant was acquitted of driving while intoxicated but [18 N.Y.3d 548] convicted of the lesser included offense of driving while ability impaired. On appeal, defendant challenged the admission of the refusal evidence at trial but the Appellate Term affirmed the conviction, reasoning that Town Court did not err in concluding that the proof was admissible (27 Misc.3d 135[A], 2010 N.Y. Slip Op. 50789[U], 2010 WL 1781601 [2010] ). A Judge of this Court granted defendant leave to appeal (15 N.Y.3d 895, 912 N.Y.S.2d 584, 938 N.E.2d 1019 [2010] ) and we now reverse.

Chemical breath tests to determine blood alcohol content (BAC) are an important investigative tool used by law enforcement in the effort to combat driving while intoxicated and related offenses. The administration of these tests is a time-sensitive proposition; to maximize the probative value of BAC evidence, the police endeavor to administer chemical tests as close in time as possible to the motor vehicle infraction, typically within two hours of an arrest.¹

[942 N.Y.S.2d 429]

[965 N.E.2d 931] The standards governing the administration of chemical tests to ascertain BAC in this circumstance are set forth in Vehicle and Traffic Law § 1194. Although there is no constitutional right to avoid submitting to a chemical test of this nature ( see People v. Shaw, 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650 [1988]; People v. Thomas, 46 N.Y.2d 100, 108, 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] ), subdivision (2)(b)...