Friday, February 17, 2012

Request to Consult an Attorney is Not By Itself a Refusal to Take Chemical Breath Test

In People v Smith(2/16/12]) the Court of Appeals reversed a conviction for driving while impaired upon a holding that the trial court erred in permitting the People to introduce evidence that Mr. Smith refused to take a chemical breath test to determine his blood alcohol content when requested to do so by State Troopers.

At the scene of his motor vehicle stop, the troopers administered Mr. Smith both Miranda warnings and chemical test warnings as contemplated in Vehicle and Traffic Law § 1194(2)(f).

The chemical test warnings informed defendant:

"You are under arrest for driving while intoxicated. I am going to ask you if you will submit to a chemical test to determine the alcohol and/or drug content of your blood. Before I do, I must advise you that a refusal to submit to a chemical test or any portion thereof will result in the immediate suspension and subsequent revocation of your license or operating privileges, whether or not you are found guilty of the charge for which you were arrested. Your refusal to submit to a chemical test or any portion thereof can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest. Do you understand what I have told you? Will you submit to a chemical test for the purpose of determining the alcohol and/or drug content of your blood?"

Mr. Smith twice responded that he understood the warnings but wanted to speak to his lawyer before deciding whether to take a chemical test.

He tried but was was unable to reach his lawyer by telephone. A half-hour later, the troopers read the chemical test warnings a third time and sought an answer from defendant concerning whether he would take a chemical test. Defendant responded that he was waiting for his attorney to call him back. The troopers interpreted defendant's response as a refusal to submit to the test and they recorded that refusal on a form pursuant to Vehicle and Traffic Law § 1194(2)(b). Smith was never advised that his time to seek a consultation with an attorney had elapsed. Thus, he maintained that he was unaware that his response to the third request — that he was waiting to hear back from his lawyer — would be interpreted as a refusal to take the test.

After reiterating its holding in People v Shaw (72 NY2d 1032 [1988] that police need not inform suspects of their right to consult counsel prior to deciding whether to submit to chemical tests, the Court held that

All that is required for a refusal to be admissible at trial is a record basis to show that, through words or actions, defendant declined to take a chemical test despite having been clearly warned of the consequences of refusal. In this case, such evidence would have been present if, during the third request, troopers had merely alerted defendant that his time for deliberation had expired and if he did not consent to the chemical test at that juncture his response would be deemed a refusal. Indeed, we already approved the use of a comparable admonition in People v O'Rama (78 NY2d 270, 280-281 [1991]) where, after defendant continued to express his desire to consult with counsel before taking a chemical test despite his inability to promptly reach his lawyer, the police properly advised defendant that his insistence on waiting for his attorney would be interpreted as a refusal.

Since Mr. Smith had not been so informed, it as error to permit testimony about a refusal.

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