Understanding New York’s Two-Hour Rule in a DWI Arrest and Refusal to Submit to a Breath Test

DWI, DUI and DWAI arrests routinely involve complicated issues beyond those that most non-attorneys contemplate. Yes, criminal lawyers will question the reason the NYPD or NY State Police stopped their client’s vehicle. Yes, legal counsel will attack the veracity of an officer’s claims as to how their client allegedly failed the walk-and-turn, one-leg, or other field sobriety test. These and other issues aside, one of the more complex matters involving New York drunk driving crimes and driving while intoxicated offenses is the way in which blood alcohol concentration breath tests are secured and treated in alcohol-related offenses. While New York treats breathalyzer and intoxilyzer tests results as a form of sel-incrimination and such an exam is a non-waivable obligation on the part of a motorist whenever a police officer deems such a test necessary based on reasonable grounds, there are guidelines law enforcement must nonetheless follow. One such rule, known as the “two-hour rule,” is codified in VTL 1194(2).

Before jumping into the meaning and application of VTL 1194(2), know that if a person refuses to comply with an appropriate and justified demand for such a test by a police officer – Westchester County Police, Putnam County Sheriff, NYPD – that fact of refusal in and of itself can be used against that person as affirmative evidence they were operating a motor vehicle under the influence of alcohol. This is a significant facet of DWI practice and one most people are unaware of until the moment they are faced with either refusing or submitting to a BAC test on the side of the road or shortly thereafter at a precinct or hospital.  Perhaps because the ramifications of such a decision are so extreme and the evidence retrieved from these exams can be affected by many different factors, certain safeguards have built up over time. Not only must the police give legally sufficient warnings and explanations to the motorists at the time the breath test was offered so that the motorists can understand the potential ramifications and consequences of their decision, law enforcement must comply with VTL 1194(2)’s “two-hour rule.” So, what happens if the instructions are not proper or the test occurs outside the two-hour window? Does an accused get a walk and the evidence is thrown out or is the practical application of the law quite different than the statutory language?

As “luck” would have it, a Queens Criminal Court Judge recently addressed these issues in a May 2019 decision. In People v. Buelelituma, the defendant was allegedly driving along the road and swerving between lanes well above the posted speed limit. The sergeant who pulled over the defendant testified at a pre-trial hearing that the defendant had bloodshot and watery eyes, a classic sign of intoxication, as well as the smell of alcohol coming from the vehicle. When the defendant was ordered out of the car, the officer observed that he was unsteady on his feet, and offered the defendant a portable handheld breath test, or PBT, which the defendant consented to and which revealed a .1 BAC. After arresting the defendant, as is the normal procedure, the sergeant offered another breath test at the precinct on a different machine that is more precise and reliable. In relevant part, the defendant ultimately provided a breath sample.

As is the usual case, the court analyzed the particulars of the refusal warnings given to the defendant in assessing whether the refusal and results of the breath test at the precinct could be used against the defendant at trial. Here, the police gave the warnings than two hours after the arrest and beyond that prescribed by statute. Moreover, the officer improperly stated the warnings and consequences of refusing. Citing the Court of Appeals holding in People v. Odum, 31 NY3d 344 (2018) (“any evidence of a refusal after” the two-hour period has expired “must be suppressed because it does not fall within the parameters of” V.T.L. §1194(2)), the court concluded that because of the improper warning, taken together with the timing of the subsequent breath test, the results must be suppressed.

Keep in mind that while the Queens Criminal Court found the evidence to be admissible, this defendant’s privilege to drive may have already been revoked. Simply, whenever there is a refusal, the Department of Motor Vehicles conducts its own separate administrative hearing with a lower legal standard and one where the judge in that case can render a decision solely on paperwork without the arresting officer appearing or testifying. Because the DMV proceeding routinely happens first, should you find yourself in such a situation, your legal counsel should consider subpoenaing the officer to ensure that he or she appears and can be cross-examined. In doing so, you can best protect your privilege to drive while creating impeach materials for the officer’s later cross-examination.

To learn more about VTL 1192 and intoxicated or drunk driving charges based on allegations of alcohol or drug consumption, follow the provided links.

Crotty Saland PC is a New York DWI and criminal defense law firm founded by two former Manhattan prosecutors who served in the DWI Unit.

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