Prince v. Dep't of Motor Vehicles

• Court: New York Supreme Court
• Writing for the Court: LUCY BILLINGS
• Citation: Prince v. Dep't of Motor Vehicles, 2011 NY Slip Op 21482, 36 Misc.3d 314, 945 N.Y.S.2d 843 (N.Y. Sup. Ct. 2011)
• Decision Date: 03 November 2011
• Parties: In the Matter of the Application of Natacha PRINCE, Petitioner v. DEPARTMENT OF MOTOR VEHICLES, Respondent.

36 Misc.3d 314

945 N.Y.S.2d 843

2011 N.Y. Slip Op. 21482

In the Matter of the Application of Natacha PRINCE, Petitioner

v.DEPARTMENT OF MOTOR VEHICLES, Respondent.

Supreme Court, New York County, New York.

Nov. 3, 2011.

Natacha Prince, pro se, Petitioner.

Serwat Farooq, Assistant Attorney General New York City, for Respondent.

LUCY BILLINGS, J.

I. THE BASIS FOR THIS PROCEEDING

Petitioner seeks to reverse respondent New York State Department of Motor Vehicle's determination August 31, 2010, affirming the revocation of her driver's license for one year based on her refusal to submit to a chemical test to measure the level of alcohol in her blood, after her arrest for driving under the influence of alcohol. NY Veh. & Traf. Law (VTL) §§ 1192, 1194(2). Although petitioner was acquitted of the charges under VTL § 1192, that acquittal did not eliminate the revocation. VTL §§ 1194(2)(b), 1199(1). See People v. Burnet, 24 Misc.3d 292, 297, 882 N.Y.S.2d 835 (Sup. Ct. Bronx Co.2009). The revocation period also now has elapsed, but to reinstate her license she still must pay the $750 civil penalty respondent assessed as part of its administrative determination on her refusal: a penalty she cannot afford, being unemployed, due in part to the loss of her license. VTL §§ 1194(2)(d)(2), 1199.

Petitioner explains, in sum, that, when the police asked her to submit to the chemical test, she was experiencing an asthma attack, so her primary concern was her request that the police transport her to a hospital to receive emergency treatment, before attending to the test. She maintains that the police never warned her of the potential license revocation if she refused the chemical test.

The verified petition, written by petitioner without legal assistance, specifically complains about the conduct of respondent's administrative hearing on her refusal, the revocation, and the monetary penalty. She points out that, when the police officer witness testified about her arrest and refusal to submit to the test without leading questions from respondent's Administrative Law Judge (ALJ), the officer never mentioned that he or his fellow officer warned her about the consequences of refusing. Only after the ALJ's insistent coaching, to the point of sua sponte identifying and admitting a form reciting the required warning and giving it to the witness to read, did he conclude that his fellow officer must have recited that warning to petitioner. Petitioner's appeal form filed with respondent's administrative Appeals Board April 12, 2010, perhaps best summarizes this basis for her appeal:

Furthermore, the officer at the hearing was not going to testify that he warned me of the consequences of a refusal. He said nothing at all about any warnings until the judge at the hearing coached him to read from a form.... Until the judge said “don't you remember saying this,” and actually pointed to the part of the form where the refusal language is, the officer was not going to testify to ever warning me .... because the officer did not actually warn me of the consequences of a refusal....

V. Answer Ex. A.

As explained more fully below, the court vacates the revocation and civil penalty on a combination of grounds. Due to petitioner's distressed physical and emotional condition, petitioner did not knowingly refuse the chemical test. Although VTL § 1194(2)(a) implies consent to a chemical test, regardless whether consent is unknowing and involuntary, the statutory terms do not similarly imply a refusal if it is unknowing or involuntary. Even if the court is to construe VTL § 1194 to imply a knowing and voluntary refusal regardless of the circumstances, however, respondent failed to satisfy its burden to prove a persistent refusal, which VTL § 1194(2)(f) explicitly requires. Moreover, even if evidence of a persistent refusal was not required in the administrative hearing, the evidence that petitioner's refusal was predicated on a warning of the consequences, presented only through the ALJ's overreaching, was tainted by his readily perceivable bias.

II. THE ADMINISTRATIVE RECORD

While petitioner admits she refused a chemical test at the point when she was experiencing an asthma attack and urgently needed medical treatment, respondent's “REPORT OF REFUSAL” executed by Police Officer Rogers, who did not testify at the hearing, does not specify that petitioner refused any test. Where the form asks whether the vehicle “operator refused to submit to a ... BLOOD ... URINE ... SALIVA [or] BREATH test,” the officer failed to respond. Id.

At the administrative hearing, where arresting officer Anthony testified, he never offered or identified the report of refusal. After Officer Anthony testified about the circumstances surrounding petitioner's arrest, only the ALJ, acting as respondent's advocate, produced the report and identified it in front of the witness, describing it to him: “I show you a report of refusal to submit to a chemical test.” Id., Tr. of Proceedings 10, Mar. 18, 2010. The ALJ proceeded, through leading questions, to elicit the witness's affirmation of the criteria authenticating the document and qualifying it as a business record. Satisfied that the report constituted sufficient evidence to support a refusal and warning of the consequences, the ALJ admitted the report in evidence and asked the officer whether he wanted to offer any further testimony.

Returning to the circumstances following petitioner's arrest, Officer Anthony volunteered “that she did explain to me later on that she had a death in the family ..., that might have contributed ... to the—the problems she gave us.... And after some time she—she was cooperative, and ... easy to deal with.” Id. at 12. Nevertheless, no one attempted a second time to administer a chemical test to her.

Upon examination by petitioner, Officer Anthony further admitted that she was complaining about her asthma. The ALJ quickly interjected with more leading questions, reverting back to the report of refusal, and reminding the witness that it specified the warnings given to petitioner when asked to take a blood test, even though the report did not specify that test. The ALJ asked the witness to read the warnings from the exhibit that the ALJ specified were given to her.

Petitioner, in turn, testified that her father, whom she had been caring for, died November 17, 2009. Late in the evening November 18, 2009, her friend Donna Kelly telephoned petitioner and asked her to drive Kelly home from a bar. Although petitioner preferred not to be bothered in her grief and was crying constantly, she acceded because Kelly had consumed too much alcohol to travel home by herself. Once in petitioner's vehicle, Kelly argued incessantly about where she wanted to be driven, causing petitioner to drive erratically, which led to the police stopping her vehicle. Smelling the alcohol odor emanating from Kelly and the alcohol she had spilled, and observing petitioner's watery, bloodshot eyes, the police arrested petitioner in the early morning of November 19, 2009.

Although petitioner volunteered “to take a sobriety test” when the police stopped her, the officers did not offer a test until later. Id. at 19. By then, petitioner, distraught that she might not be released for her father's funeral the next day, in pain from handcuffs so tight they were cutting her wrist and numbing her hand, fighting off an asthma attack, and worried she would not receive timely treatment as she waited hours for it, had become too agitated and distracted to concern herself immediately with the test.

Officer Anthony's account was consistent. Petitioner was vomiting, experiencing difficulty breathing, and suffering an asthma attack severe enough that the police secured an ambulance to transport her to a hospital on a stretcher. He “could hardly get her to stand, id. at 8, so she “laid out on the floor.” Id. at 9.

Petitioner pointed out that Officer Rogers, who offered the test, never specified the type of test or what it entailed, which might have encouraged petitioner, like warning of the consequences of refusal, to realize she could deal with the test offered despite her distress. People v. Garcia–Cepero, 22 Misc.3d 490, 497–98, 874 N.Y.S.2d 689 (Sup. Ct. Bronx Co.2008). Without more detail, petitioner well may have expected that the test would require her to breathe hard into an Intoxilyzer when she “felt her airways tightening up” and was gasping for breath due to her asthma. V. Answer Ex. A. See People v. Bratcher, 165 A.D.2d 906, 907, 560 N.Y.S.2d 516 (3d Dep't 1990); People v. Burnet, 24 Misc.3d at 296–97, 882 N.Y.S.2d 835. Nor did the officers accommodate her request to loosen her handcuffs to relieve her agitation. Once she refused the test, the officers simply walked away.

III. EVALUATING PETITIONER'S REFUSAL OF A CHEMICAL TESTA. Whether Petitioner's Refusal Was Knowing and Voluntary

This record supports the conclusion that petitioner's refusal of the test offered by the police, regardless whether the police recited any warning, resulted from her impaired physical and emotional condition, rather than any knowing decision not to submit to a test. Gagliardi v. Department of Motor Vehicles, 144 A.D.2d 882, 883, 535 N.Y.S.2d 203 (3d Dep't 1988). VTL § 1194(2)(a), which obligates a driver, when lawfully arrested on reasonablegrounds to believe she was driving while intoxicated, to submit to a chemical test or forfeit her driving privileges, does not require that consent be knowing. People v. Goodell, 79 N.Y.2d 869, 870, 581 N.Y.S.2d 157, 589 N.E.2d 380 (1992); People v. Kates, 53 N.Y.2d 591, 595, 444 N.Y.S.2d 446, 428 N.E.2d 852 (1981); People v. Morrisey, 21 A.D.3d 597, 598, 799 N.Y.S.2d 642 (3d Dep't 2005); People v. Dombrowski–Bove, 300 A.D.2d 1122, 1123, 753 N.Y.S.2d 259 (4th Dep't 2002). See Gagliardi v. Department of Motor Vehicles, 144 A.D.2d at 884, 535 N.Y.S.2d 203. The statute establishes that:

Any person who operates a motor...