DWI in New York: Criminal Defense & Suppressing the Breathalyzer III:

Throughout NY, law enforcement is gearing up for the holiday season and the unfortunate reality that many people will be driving drunk. Make no mistake, police, prosecutors and judges rightfully take DWI (Driving While Intoxicated) crimes very seriously. That being said, law enforcement must act within the bounds of the law in investigating and prosecuting these crimes. Obviously, making sure that law enforcement adheres to the “rule of law” is imperative to the criminal defense attorneys at Crotty Saland PC, because we know that the mere allegation of DWI, even if it is completely incorrect, has life altering consequences.

Recently, in People v. Shannon Sharp, 2008I001925, a criminal court judge suppressed the blood test results of a defendant charged with DWI. In that case, 2.5 hours after the defendant was initially arrested, the defendant agreed to submit to a blood test after the police officer “told that her [that her] driver license would be immediately suspended and subsequently revoked if she did not consent to a blood test, and that ‘refusal to submit to a test or portion thereof, can be introduced against [her] at any trial proceeding or hearing resulting from the arrest.'”

In suppressing the results of the blood test, the court correctly recognized that pursuant to VTL 、1194 [2][a], a driver must submit to a chemical test within two hours after being placed under arrest for any violation of VTL 、1192 (DWI). “Although evidence of a defendant’s refusal to take the test offered within the two hour period may be admissible, evidence of refusal to a test offered beyond the two hour period is inadmissible “(People v. Morris, 8 Misc3d 360 [Crim Ct, Richmond County 2005]). “The general prohibition of offering evidence of a chemical test taken beyond two hours of arrest is inapplicable if the defendant consents to the test” (People v. Ayala, 89 NY2d 874 [1996]; but see People v. Victory, 166 Misc 2d 549 [Crim Ct, Kings County 1995]).

Moreover, a “simple request to submit to a blood test can result in a voluntary consent beyond the two hour period as long as there is no express or implied coercion by law enforcement officials, no material misrepresentation of fact to induce consent, and no facts to suggest that the police acted in a manner so fundamentally unfair as to constitute a due process violation to negate any consent “(People v. Capraella, 165 Misc2d 639, 644 [Crim Ct, Queens County 1995]).

As stated above, in this case the submission to the test was beyond two hours from the initial arrest. Moreover, the police officer incorrectly advised the defendant as to the law when he stated that her driver license would be suspended immediately, it would then be revoked if she did not submit to a blood test, and, lastly, that the defendant’s refusal to take the blood test could be used against her at a later trial or hearing. As a result, the court found that the “inaccurate statement of the law by a police officer, detailing undesirable consequences if the defendant refused a blood test, rendered submission to the blood test involuntary.”

If you find yourself or a loved one charged with any serious criminal matter including DWI, contact the former Manhattan prosecutors and criminal defense attorneys at Crotty Saland PC. Our attorneys will vigorously and zealously fight to protect your integrity, rights, and future.

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