People v. Smith

Decision Date26 August 1974
Citation79 Misc.2d 172,359 N.Y.S.2d 446
PartiesThe PEOPLE of the State of New York Plaintiff, v. Agnes H. SMITH, Defendant.
CourtNew York County Court

STEPHEN SMYK, Judge.

The People appeal the April 24, 1974 order of the Village Court of Johnson City, New York, dismissing a simplified information charging the defendant with Driving While Intoxicated in violation of Vehicle and Traffic Law section 1192 subdivision 3.

Prior to the commencement of the trial, the Assistant District Attorney made an offer of proof with respect to his intention to present evidence (pursuant to section 1194 subdivision 2 of the Vehicle and Traffic Law) of the defendant's refusal to take a blood test. That section reads, in pertinent part:

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 . . . however, . . . 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.

The lower court would not allow the prosecution to introduce evidence of refusal and declared the above-quoted section of the Vehicle and Traffic Law unconstitutional.

The issue, simply framed, is whether evidence of refusal may be admitted pursuant to section 1194(2). In order to understand whether this type of evidence is proper, we must first examine whether the defendant having been arrested for Driving While Intoxicated has a constitutional right to refuse to submit to a chemical analysis of his breath. The landmark decision of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 answers the foregoing question in the negative by holding that there are no constitutional rights or privileges to prevent a state from compelling a person, suspected of driving while intoxicated, to submit to a blood test. Furthermore, the New York Court of Appeals has held, as a logical extension of Schmerber, that a person is not entitled to the warnings required by Mianda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 prior to the extraction of blood (People v. Craft, 28 N.Y.2d 274, 321 N.Y.S.2d 566, 270 N.E.2d 297). Consequently, since there is no constitutional right to refuse to submit to such a test, it necessarily follows that there can be no constitutional prohibition to prevent comment upon the accused's failure to take the test.

Furthermore, Judge Jasen, in a concurring...

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6 cases
  • State v. Fish
    • United States
    • Supreme Court of Oregon
    • April 27, 1995
    ...444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 (1979); People v. Haitz, 65 App.Div.2d 172, 411 N.Y.S.2d 57 (1978); People v. Smith, 79 Misc.2d 172, 359 N.Y.S.2d 446 (1974); People v. Mosher, 93 Misc.2d 179, 402 N.Y.S.2d 735 (1978); State v. Flannery, 31 N.C.App. 617, 230 S.E.2d 603 (1976); Wes......
  • People v. Sukram
    • United States
    • New York District Court
    • March 13, 1989
    ...is quite obvious that the primary reason for a refusal to submit to a blood test is that a person fears guilt." People v. Smith, 79 Misc.2d 172, 175, 359 N.Y.S.2d 446, 449 (1974). As [noted] Chief Justice Traynor [of California] so cogently observed, "a guilty party may prefer not to find h......
  • People v. Strauser, CR-00060-17
    • United States
    • New York City Court
    • June 17, 2017
    ...and VLT §1194(2)(f) sanctions the use of a Defendant's refusal to take a chemical test as evidence of guilt. See, People v. Smith, 79 Misc 2d 172. This evidence, however, may only be received if the Defendant is warned of the consequences of a refusal, and continues to refuse. There is no m......
  • People v. Mosher
    • United States
    • New York Town Court
    • February 14, 1978
    ...79 Misc.2d 868, 361 N.Y.S.2d 827 or People v. Delaney, 83 Misc.2d 576, 373 N.Y.S.2d 477. As stated in the case of People v. Smith, 79 Misc.2d 172, 173, 359 N.Y.S.2d 446, 448: . . . Consequently, since there is no constitutional right to refuse to submit to such a test, it necessarily follow......
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