People v. Victory

• Decision Date: 04 August 1995
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Thomas VICTORY, Defendant.
• Court: New York City Court

Page 805

631 N.Y.S.2d 805

166 Misc.2d 549

The PEOPLE of the State of New York, Plaintiff, v. Thomas VICTORY, Defendant.

Criminal Court of the City of New York County of Kings County.

Aug. 4, 1995.

[166 Misc.2d 550] Charles J. Hynes, District Attorney of Kings County (Mark Muccigrosso, Brooklyn, of counsel), for plaintiff.

Anthony M. Bramante, Brooklyn, for defendant.

AMENDED DECISION AND ORDER

JOSEPH J. MALTESE, Judge.

In view of the Court of Appeal's 4-3 split decision in People v. Atkins, 85 N.Y.2d 1007, 630 N.Y.S.2d 965, 654 N.E.2d 1213 (1995), this court upon the application of the People has reconsidered its decision of June 6, 1995 which suppressed the results of a breathalyzer test, and hereby sets it aside.

This court now holds that in this prosecution of Vehicle and Traffic Law ("VTL") section 1192 for operating a motor vehicle while impaired or intoxicated by alcohol, upon objection of the defense, the prosecution must establish, at a hearing by expert testimony, scientific evidence that a Blood Alcohol Content (BAC) test taken more than two hours after the arrest of the defendant is competent, reliable and probative of the fact that the defendant was impaired or intoxicated when he operated a motor vehicle before such results may be admitted as relevant evidence at the trial.

Recently, the Court of Appeals in Atkins, supra. allowed a BAC test for drugs to be admitted into evidence when the defendant consented to take the test within two hours of arrest, and where the test was actually administered two hours and twenty-eight minutes after the arrest. More recently Judge Grosso, in People v. Capraella, (N.Y.L.J., August 1, 1995 at 29, col. 3 [Crim.Ct.Queens Co.] denied a motion to suppress the results of a BAC test administered after two hours, and held that Atkins eliminated the Two Hour Rule when a defendant expressly consents to take the BAC test. However, Judge Grosso stated that it was unclear whether Atkins only applies where the defendant consents to take a BAC test within two hours of arrest. Both Judge Grosso and this court believe that the Court of Appeals in Atkins has created more questions than answers to the VTL § 1194 Two Hour Rule. Hence a review of the Two Hour Rule is appropriate to understand and place Atkins in its proper perspective.

The Two Hour Rule

Under VTL § 1194.2 and the New York State Department of Health Regulations (10 NYCRR § 59.2[c][2] regarding the administration of blood and breath tests it is mandated that the BAC test shall be administered within two hours of arrest. ¹

The Two Hour Rule actually benefits the prosecution in that it creates a presumption that the BAC test results are admissible. Absent such a rule the prosecutor would need to establish by expert testimony the scientific relevancy of the test in every drunk driving prosecution. Since the Court of Appeals in Atkins will allow evidence of a BAC test taken more than two hours from arrest to be presented in a trial, the People lose their presumption of the scientific reliability beyond two hours from arrest and must now establish same at a pre-trial hearing.

Prior to the Court of Appeals in Atkins all of the Appellate Divisions and the various trial courts have rendered numerous disparate published decisions regarding the interpretation of the Two Hour Rule. Despite the conflicting views the Court of Appeals in Atkins a 4-3 majority memorandum decision sheds little guidance on the interpretation of the Two Hour Rule. Only the dissent discusses the issues. In affirming the unreported decision of the First Department Appellate Term's affirmance of an unreported New York County Criminal Court decision, the Court of Appeals relied upon People v. Ward, 307 N.Y. 73, 120 N.E.2d 211 (1954).

In Ward, supra, the 1954 Court of Appeals stated that "actual consent" nullifies "implied consent". While this may be true, the Court of Appeals in Ward was not discussing the "Two Hour Rule." In fact, the "implied consent" statute (formerly § 71-a of the VTL) and the Two Hour Rule (formerly § 70[5] of the VTL) were in different parts of the statute. ²

Moreover, the issue of the non-voluntariness of the defendant's consent was not even addressed by the court in Atkins as it was not preserved for appeal (see Atkins, supra, at fnt. 2.)

The Appellate Term, First Department's holding in People v. Atkins (Order No. 94-048, June 22, 1994) relied heavily upon the case of People v. Mills, 124 A.D.2d 600, 507 N.Y.S.2d 743 (1986) lv. denied 69 N.Y.2d 953, 516 N.Y.S.2d 1037, 509 N.E.2d 372 (1987) which since its decision in 1987 has been cited numerous times for the proposition that the results of a chemical blood-alcohol content (BAC) test administered beyond two hours after the defendant's arrest may be admitted into evidence, as long as the defendant consented to the test. ³

People v. Mills

However, the Second Department of the Appellate Division in Mills was affirming a Penal Law conviction to reckless vehicular homicide, not the extension of the Two Hour Rule of the Vehicle and Traffic Law. As Judge Tallmer, a Criminal Court Judge in the First Department, stated in People v. Edwards, (N.Y.L.J. May 12, 1992, at 26, col. 6 [Crim.Ct.N.Y.Co.]:

[Mills, supra.] is distinguishable on its facts. In Mills, defendant was charged with criminally negligent homicide, not driving while intoxicated. Thus, the Appellate Division's holding that the Two Hour Rule does not apply where express consent is given is dicta as to whether compliance with the Two Hour Rule must be proven by the People as an element of the crime of driving while intoxicated [emphasis added].

Unfortunately, such facts were not clear in the one-page memorandum decision affirming the conviction. As a result, Mills, supra, has been consistently misread and misapplied since its issuance. Only a reading of the Appellate Record places the Mills decision in its proper context, the affirmance of a negotiated plea to vehicular homicide. Since the Two Hour Rule in a VTL case was not ruled upon in Mills, it may be distinguished from the typical DWI case where the Two Hour Rule applies.

The facts in Mills demonstrate the old legal adage by Justice Holmes that hard facts make bad law ⁴. Harry Mills, Jr. was a college student and the son of a Town Justice who was driving an automobile which was involved in an accident which left a mother of two dead. ⁵ After Mills pled guilty to criminally negligent homicide (PL § 125.10) and received what may be argued is a light sentence ⁶, the defendant appealed the sentence and all decisions made on prior motions, including a decision holding all provisions of Vehicle and Traffic Law section 1194, including the Two Hour Rule, inapplicable as the case involved the Penal Law and not a Vehicle and Traffic Law.

The trial court held that "[t]he requirements of the Vehicle and Traffic Law § 1194 are not relevant [and therefore] the test results will only be admissible if obtained with the defendant's consent or pursuant to a court order" (MR 73.) ⁷ The trial court then held that Criminal Procedure Law section 60.75 ⁸ imposed a "requirement that an individual be separately charged with a violation of [VTL § 1192] before the more lenient requirements of [VTL § 1194] will be applied to the use of the test results on the trial of the Penal Law charges" (MR 11.) As a result the trial court only held a hearing on the issue of whether the defendant's consent to the removal of his blood was knowing and voluntary under the circumstances in which it was given. (See, People v. Casadei, 66 N.Y.2d 846, 498 N.Y.S.2d 357, 489 N.E.2d 244 [1985].)

In short, the Mills case was not about interpreting the proper use of the Two Hour Rule of Vehicle and Traffic Law section 1194. In fact, the trial court never made a finding as to how long after the arrest the chemical test was given to the defendant or if the test was offered or given more than two hours after arrest ⁹.

Mills is Not Universally Followed

While Mills has generally been cited and followed, albeit for the wrong reasons, throughout the Second Department, it has not been followed by the Fourth Department and has met mixed reviews by the Third Department. The First Department Appellate Division has not addressed the Two Hour Rule, however lower courts within the First Department are divided on its interpretation (See People v. Dillin, N.Y.L.J. October 5, 1990, at 23, col. 3 [Crim.Ct.N.Y.Co.] [following Mills ] and People v. Ali, 151 Misc.2d 742, 573 N.Y.S.2d 575 [Crim.Ct.N.Y.Co.1991] [not following Mills].) However, the Appellate Term of the First Department, which handles appeals from the Criminal Courts of New York and Bronx Counties seems to have adopted Mills (People v. Byington, N.Y.L.J. December 8, 1989, at 21, col. 1.)

Even within the Second Department, Mills, supra, has led to some, seemingly illogical conclusions. For example, in People v. Stelmach, 191 A.D.2d 733, 595 N.Y.S.2d 509 (1993) the Appellate Division, Second Department held that an operator of a motor vehicle may be requested to consent to a chemical test at the direction of a police officer within two hours of arrest (emphasis added). However, the court then went on to state that since the defendant consented to a blood test, the two-hour statutory requirement does not apply (citing Mills, supra and Abel, supra.) Query, is a BAC test admissible where a person's consent is based upon a request by a police officer more than two hours after an arrest? The Atkins, case suggests that at least consent must be obtained within two hour from the arrest.

The Fourth Department has come to a different conclusion than the Second Department stating that "unless the test is taken within the two-hour time limit ... the results are not competent evidence and may not be received in evidence against the operator" (People v. Brol, 81 A.D.2d 739, 740, 438 N.Y.S.2d 424 [4th Dept. 1981].)

The Appellate Division, Third Department has...