People v Kenny

[*1] People v Kenny 2005 NY Slip Op 51395(U) [9 Misc 3d 1104(A)] Decided on September 6, 2005 Criminal Court Of The City Of New York, Richmond County Sciarrino, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 6, 2005
Criminal Court of the City of New York, Richmond County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Robert Kenny



2005RI001023

Matthew A. Sciarrino, J.

The People move to reargue [FN1] this court's prior oral decision of June 8, 2005, granting the defendant's motion to preclude evidence of the defendant's refusal to submit to a chemical test to determine his blood alcohol content ("BAC"). The court grants the People's motion to reargue, and upon reargument, this court reaffirms its prior oral decision.

Facts

Police Officer Mullane, a twelve-year veteran of the New York Police City Department was assigned to Highway Patrol. On February 11, 2005 at 6:30 p.m., the officer was on highway patrol conducting routine traffic enforcement in the vicinity of the Staten Island Expressway where it merges into the West Shore Expressway, in Staten Island, New York.

While traveling southbound on the West Shore Expressway, the officer identified the defendant traveling in an Infiniti at a "high rate of speed." The officer began to follow the motorist and observed him go in and out of traffic without signaling, and following other vehicles too closely. This behavior went on for approximately one-half mile before the officer pulled the defendant over. After pulling the defendant over, the officer walked up to the car to get the defendant's pedigree information. The defendant rolled down his window and the officer asked the defendant for his license and registration. During the course of this exchange, the officer noticed a strong odor of alcohol emanating from the defendant's breath. He also noticed that the defendant's eyes were bloodshot and watery. As the conversation went on, the officer also noted that the defendant's speech was slurred. The officer testified as to his extensive training with regard to drunk drivers, and suspected that the defendant had been drinking. The officer told the defendant to exit the vehicle and then walked him a few feet to the area between the cars. At this time, Officer Mullane was met by Officer Repetto, of Highway 5, a thirteen-year veteran of the New York City Police Department, who assisted Officer Mullane in making the arrest. The defendant began swaying and was unsteady on his feet and was placed under arrest at 6:54pm.

[*2]

The officer asked the defendant if he would take a breath test on his portable alcohol sensing unit. The defendant refused to take the test. The officer testified that he explained to the defendant that he would have to be taken down to the precinct because he believed defendant was intoxicated. The defendant was brought to the 120 precinct and was led to the front desk and brought upstairs to the Intoxicated Drivers Testing Unit ("IDTU") room.

The defendant telephoned his sister, a retired police officer, who came to the precinct. She was given the opportunity to speak with the defendant in the IDTU room. While in the IDTU room the defendant was read Miranda rights, however he was "unresponsive" to any of the officer's questions. The defendant was offered a test to determine his blood alcohol content on the Intoxilyzer 5000 at 9:45 p.m.. The defendant refused this test. The events that took place in the IDTU room were recorded on video tape, with audio. Additionally, several documents were drafted and filled out memorializing the events of February 11, 2005, in connection with this defendant.

The Intoxicated Driver's Exam Form, which is also known as the report of the refusal, was filled out contemporaneously by Officer Repetto, who was the IDTU technician that evening. This document contains the general refusal script which was read to the defendant regarding the consequences of refusing to submit to the test. The Form states, that the time of the refusal was at 9:45pm. This was more than two hours from the time of the arrest. Additionally, the IDTU test report states that the defendant's speech was "clear."

During the hearing, when asked if the defendant refused the test at 9:45pm, Officer Mullane stated that he didn't know the time of the arrest, but that the refusal report had the correct time. Officer Repetto likewise had no independent recollection of the time of the refusal. On the video,[FN2] the court observed Officer Repetto recite the date and time of the event, by looking to his wrist watch and stating that the time was "8:45 p.m." This court found at the hearing, that the actual time of the refusal was 9:45 p.m. as indicated by the refusal form.

DiscussionThe court found that the best evidence of the time of the refusal was the IDE form, which was filled out contemporaneously with the occurrences. This did not mean that the video tape was disregarded by the court under the "Best Evidence Rule" as suggested by the People. Resolution of issues of credibility as well as the weight to be accorded to the evidence presented are primarily questions to be determined by the fact-finder, and great deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe the demeanor of witnesses (People v. Faulk, 137 AD2d 830 [2d Dept 1988]). The evidence in its written and tangible form was a better proof of the time than an officer who looked at his wristwatch quickly and stated the time.

Under Vehicle and Traffic Law ("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, [*3]it is mandated that the BAC test shall be administered within two hours of the time of the arrest (People v. Victory, 166 Misc 2d 549 [Crim Ct Kings County 1995]). The applicable Health Rules and Regulation mandated in connection with the two-hour rule have been held to have "definite authority" in this area, by both the Third and Fourth Departments of the Appellate Division (see, People v. Hampe, 181 AD2d 238, 240-241 [3d Dept 1992]; People v. McDonough, 132 AD2d 997,997 [4th Dept 1987]; People v. Boyst, 177 AD2d 962 [4th Dept 1991]).[FN3] The Health Regulations (10 NYCRR 59.5[a]) provide in pertinent part that: [a] breath sample shall be collected at the direction and satisfaction of a police officer within two hours of the time of arrest or within two hours of a positive breath alcohol screening test.

Similarly, 10 NYCRR 59.2[c][2], which pertains to blood and urine testing, provides that: "[a]ll samples shall be collected within two hours from the time of the arrest." Furthermore, "[r]egardless of the admissibility of such evidence at trial, the two-hour rule clearly applies to DMV refusal hearings."[FN4] In this regard, the standardized DMV Report of Refusal to Submit to Chemical Test Form, expressly states that "[s]ection 1194 of the Vehicle and Traffic law requires that the refusal be within two-hours of the arrest."[FN5]

In conducting a VTL 1194 analysis, time and accuracy of evidence are controlling issues in determining relevance and overall admissibility (People v. Morris, 8 Misc 3d 360 [Crim Ct Richmond County 2005]).[FN6] This court having investigated the legislative history of the statute refuses to disregard the plain meaning of the statute. Whereas the People argue that "expressio unius est exclusio alterius,"[FN7] the plain meaning of the statute provides, in English, that "the breathalyzer test results are admissible provided that the breathalyzer test was administered either within two hours after the arrest or within two hours after the breath test" (See, VTL 1194[2][a][1], [2]; People v. Zawacki, (244 AD2d 954 [4th Dept 1997]). The Appellate Division, Second Department recently denied a defendant's appeal because the chemical test was administered "within two-hours" (People v. Capia, 95 NY2d 851 [App. Den. 2d Dept 2000]).

In this case, the refusal was made almost three hours (two hours, 51 minutes) from the time of the arrest. In People v. Brol, (81 AD2d 739, 740 [4th Dept 1981]) the Appellate Division Fourth Department, held that if the defendant "was requested to take the [chemical] test after the two hours [*4]had expired, evidence of his refusal was incompetent and should not have been considered by the jury." This is different from when "a driver explicitly consents to the administration of a chemical test," as the "time constraint contained in the "implied consent" section [VTL 1194.2[a]] are inapplicable" (People v. Morales, 161 Misc 2d 128, 131 [Crim Ct Kings County 1994]). In these cases the defendant has waived his right to refuse a test done after the statutory period. Fundamentally, the reasoning behind such rulings are that "BAC tests beyond two hours may no longer be scientifically relevant and probative of the issue of intoxication at the time of arrest" (Victory, supra at 562). "Two hours should mean two-hours, absent a knowing waiver and consent to take the test." (Morris, supra at 366).

Such a "waiver" of the two-hour rule was done in People v. Atkins, (85 NY2d 1007 [1995]). In Atkins the New York Court of Appeals allowed the results of a chemical test to be admitted to evidence, even though the test was administered two hours and twenty-eight minutes after the defendant's arrest. In Atkins the defendant "expressly and voluntarily" consented to the blood test (Atkins, supra at 1009). Likewise in Zawacki, (supra) the Appellate Division, Fourth Department applied the rule in Atkins and maintained that "the two-hour time limit is inapplicable to chemical tests administered pursuant to a defendant's actual consent."[FN8]

This court agrees that under Atkins, if express consent is obtained, then the results may be admitted despite the fact that more than two hours have passed since the defendant's arrest (Morales, supra at 131).[FN9] However, in this case the defendant was never properly warned that more than two hours had passed from the time of his arrest and that he was no longer subject to the "implied consent" provision of VTL 1194. Although the general refusal warning may have been administered, there was no warning or notice that more than two hours had elapsed from the time of his arrest, and its repercussion.[FN10] "[C]ourts have sanctioned suppression hearings prior to trial to determine the admissibility of evidence of a defendant's refusal to take a chemical test to determine his/her blood alcohol level" (People v. Burtula, 192 Misc 2d 597 Dist Ct Nassau County 2002]). It is the People's burden at a pre-trial refusal hearing to show by a preponderance of the evidence that the proper warnings were given (People v. Walsh, 139 Misc 2d 161 [Dist Ct Nassau County 1988]). Moreover, VTL 1194 [2][f] provides that: [f] Evidence. Evidence of a refusal to submit to such chemical tests or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of VTL 1192 but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal. [Emphasis Added][*5]

There was no "sufficient warning, in clear and unequivocal language" in this case. A defendant should be apprised of the changed circumstances that come with the expiration of the two-hour period of "implied consent" pursuant to the VTL. Short of a clear and unequivocal warning, a defendant could not appreciate the ramifications of submitting to, or refusing, such tests.

Accordingly, the evidence of this refusal is precluded from being introduced at trial.

This opinion shall constitute the Decision and Order of the court.

Dated: September 6, 2005________________________

Hon. Matthew A. Sciarrino, Jr.

Judge of the Criminal Court

Footnotes

Footnote 1: The People also made a second motion called "People's Supplemental Motion to Reargue." However, this "motion" was served after their time to reply to the opposition to the original motion had expired. As it sought the exact relief as the instant motion this court deemed it a "reply." With no objection from the defendant, this court reviewed the "reply" and considered it in its decision.

Footnote 2: It is interesting to note that the People did not ask the court to view the video tape after introducing it into evidence. However, the court, sua sponte, viewed the tape.

Footnote 3: P. Gerstenzang, Handling the DWI case in New York 31:8 [West 2005]

Footnote 4:See also, P. Gerstenzang, Handling the DWI case in New York 41:90 [West 2005]

Footnote 5: Id.

Footnote 6:For a more in depth discussion on the evolution and application of VTL 1194, See, People v. Victory (166 Misc 2d 549 [Crim Ct Kings County 1995]) and People v. Morris (8 Misc 3d 360 [Criminal Ct Richmond County 2005]).

Footnote 7:" The express mention of one thing implies the exclusion of the other."

Footnote 8: P. Gerstenzang, supra at 31:6 ,7 [West 2005]

Footnote 9: Even though admissible, the scientific relevancy of a BAC test administered after two-hours may still be challenged by the defendant as the test results are no longer presumed to be accurate (see, People v. Victory, supra).

Footnote 10:The New York City Police Department has a different warning that they give for post two-hour cases. (See Morales, which was a post- two-hour rule case where such a result was given.