People v. Walsh

• Decision Date: 05 April 1988
• Citation: 527 N.Y.S.2d 349,139 Misc.2d 161
• Parties: The PEOPLE of the State of New York v. Patrick G. WALSH, Defendant.
• Court: New York District Court

Page 349

527 N.Y.S.2d 349

139 Misc.2d 161

The PEOPLE of the State of New York v. Patrick G. WALSH, Defendant.

District Court, Nassau County Criminal Part.

April 5, 1988.

Denis Dillon, Dist. Atty. by Warren W. Quaid, Asst. Dist. Atty., for people.

Thomas Costello, Mineola, for Walsh.

DECISION ON MOTION

ZELDA JONAS, District Court Judge.

Statement of Facts

The defendant was arrested on July 26, 1987 and charged with driving while intoxicated in violation of Section 1192(3) of the Vehicle and Traffic Law. At the time he was arraigned on the charge he pleaded not guilty. The defendant now moves inter alia for an order directing that a pre-trial hearing be held to determine the admissibility of defendant's alleged refusal to submit to a breathalyzer, blood, urine or saliva test pursuant to Section 1194(4) of the Vehicle and Traffic Law. The defendant contends that he was not properly advised of the consequences of his refusal and that he was not requested to take a chemical test until more than two hours after his arrest, and therefore, his refusal to submit to a chemical test should be suppressed and not be admissible at trial.

The People oppose the motion, contending that there is no constitutional or statutory requirement for such hearing.

Discussion

To admit defendant's refusal to consent to a chemical test of his blood, breath and/or urine to determine his blood alcohol (Section 1194(4) of the Vehicle and Traffic Law) at the time of trial, the People must first establish that the police had reasonable cause to believe that the defendant was driving while intoxicated and that the request to submit to such chemical test was made within two hours of defendant's arrest. V.T.L. 1194(1). If the defendant's refusal was made after the statutory two hour limit, the refusal is not admissible at the time of trial. People v. Brol, 81 A.D.2d 739, 438 N.Y.S.2d 429 (Fourth Dept. 1981). (Had the defendant given his express consent to take the test, the two hour statutory limit would not apply. In such a case, the judge must determine, as an "impartial magistrate", if the defendant has been denied due process in considering the admission of the chemical test beyond the statutory two hour period. People v. Mills, 124 A.D.2d 600, 601, 507 N.Y.S.2d 743 (Second Dept.1986), lev. denied 69 N.Y.2d 953, 516 N.Y.S.2d 1037, 509 N.E.2d 372 (1987); People v. McGrath, 135 A.D.2d 60, 524 N.Y.S.2d 214.) However, if the refusal is made within the two hour statutory period of time, it is admissible "... 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." V.T.L. 1194(4); People v. Delia, 105 Misc.2d 483, 432 N.Y.S.2d 321 (County Court, Onondoga County 1980).

The refusal by an operator of a motor vehicle to consent to a chemical test to determine his blood alcohol permits a court to charge a jury that they can consider the refusal as some evidence of guilt. In effect, it allows the jury to infer a consciousness of guilt on the part of the defendant. People v. Thomas, 46 N.Y.2d 100, 106, 412 N.Y.S.2d 845, 385 N.E.2d 584 (1978); People v. Boone, 71 A.D.2d 859, 419 N.Y.S.2d 187 (Second Dept.1979).

Despite the prejudicial effect this evidence might have at the time of trial, if it conforms to the statutory requirements of V.T.L. 1194(4) it does not violate either federal or state constitutional rights. People v. Thomas, supra; South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Nor is the evidence of the refusal one of the categories of evidence subject to suppression authorized by statute (C.P.L. 710.20).

The question for the Court then becomes whether or not to permit comment of such refusal to be presented to the jury, and upon a failure of the People to provide the necessary foundation, admonish the jury not to consider the evidence; or, conduct a pre-trial hearing as to the admissibility of the refusal.

The Courts of this State have consistently recognized the basic premise that an admonition to disregard evidence which has been stricken out is "easy to give and hard to follow." People v. Marshall, 306 N.Y. 223, 228, 117 N.E.2d 265 (1954); People v. Houghland, 79 Misc.2d 868, 361 N.Y.S.2d 827 (District Court, Suffolk County, 1974). In recognition of this fact, varied evidentiary determinations have been subject to pre-trial hearings. People v. Dawson, 50 N.Y.2d 311, 428 N.Y.S.2d 914, 406 N.E.2d 771 (1980) (admissibility of defense witnesses, failure to come forward with exculpatory information at an earlier date); People v. Ventimiglia, 52 N.Y.2d 350, 361-362, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981) (admission of potentially prejudicial testimony regarding uncharged crimes); People v. Turnstall, 63 N.Y.2d 1, 8-9, 479 N.Y.S.2d 192, 468 N.E.2d 30 (1984) (admission of witnesses pre-hypnotic recollection).

In addition to these pre-trial...