Can Your Inability to Urinate be the Basis of a DWI (VTL 1192.3) Refusal?

Many New York criminal defense attorneys have handled cases with unique, if not “funny” sets of facts. While no criminal accusation is a laughing matter, criminal defense attorneys always have to be ready to handle situations that fall outside every day parameters. In the context of Driving While Intoxicated (DWI) pursuant to Vehicle and Traffic Law section 1192.3, one criminal defense lawyer and the court were confronted with such a situation. In that case, People v. Krivak, a Rockland County, New York Village Justice addressed the following issue: Is one’s inability to urinate for the purpose of submitting to a chemical test a legal “refusal.”

Briefly, and by way of background, New York permits the prosecution of individuals who are deemed to be driving while intoxicated even if their BAC is not recorded. This offense is often referred to as “Common Law DWI” and is found in the Vehicle and Traffic Law under section 1192.3 Police and prosecutors establish this crime by asserting that the accused had certain characteristics such as watery and blood-shot eyes, the smell of alcohol, slurred speech and unsteadiness on their feet. If a person refuses to take a chemical test to ascertain if and the amount of alcohol in their system, their failure to do so may legally be construed as a refusal. This refusal can then be used at a trial as evidence of the defendant’s guilt.

Now for the issue addressed above…

According to the court, the police gave Mr. Krivak clear and proper refusal warnings after he was arrested on suspicion of DWI. After such warnings were given and he was asked to provide a urine sample, Mr. Krivak failed to urinate despite being given ample water. Although not an express refusal to provide a sample, Mr. Krivak contended he was unable to urinate. The court viewed Mr. Krivak’s failure as “deemed” refusal to submit to a chemical test.

In finding that Mr. Krivak’s refusal was no different than an express refusal, the court compared the actions of Mr. Krivak’s to other cases. For example, in People v. Bratcher, 165 A.D.2d 906(3rd Dept. 1990), a defendant was found to have refused to use the intoxilizer after giving an insufficient “blow.” But it was not the case law that the court relied on to make its determination that the defendant’s failure to void his bladder was in fact a refusal for the purpose of the Vehicle and Traffic Law. If the defendant had informed the police as to the reasons why he was unable to urinate or provided medical evidence at a hearing for that same purpose, the court may have concluded differently.

Saland Law PC is a New York criminal defense law firm founded by two former Manhattan prosecutors who served under Robert Morgenthau. Our criminal defense blog is updated at least once every four days and our readers can follow us on Twitter at DefenseLawyerNY.

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