Summary
The New York Court of Appeals held that evidence of a defendant’s refusal to submit to a chemical test was improperly admitted because the defendant was not clearly informed that his continued request to consult counsel would be treated as a refusal. The court distinguished a violation of the limited right to counsel from the separate question of whether refusal evidence was admissible under Vehicle and Traffic Law § 1194. It reversed the conviction and ordered a new trial, finding the error was not harmless.
Topics
Practice areas
Questions Presented
- Whether evidence of a motorist's refusal to submit to chemical testing is admissible when the motorist repeatedly requests to consult counsel and the police do not clearly advise that the time for deliberation has ended or that continued nonconsent will be treated as a refusal.
- Whether defendant's limited right to counsel under People v. Gursey was violated.
- Whether admission of the refusal evidence was harmless error.
Holdings
- Evidence that a defendant refused chemical testing is admissible under Vehicle and Traffic Law § 1194 (2) (f) only when the defendant actually declined the test after being clearly and unequivocally warned of the consequences of refusal. Where the defendant's continued request to consult counsel could reasonably be understood as continued deliberation, and police did not advise that the deliberation period had ended or that nonconsent would constitute a refusal, the evidence is inadmissible.
- The police did not violate defendant's limited right to counsel because they permitted him to attempt to contact his attorney and allowed him to wait for a return call without undue interference.
- Admission of the refusal evidence was not harmless because the trial court, acting as factfinder, relied on that evidence and characterized the remaining proof as presenting a fairly close question.
Key quotations
“However, those consequences flow from a refusal only if the motorist is first warned, “in clear and unequivocal language, of the effect of such refusal” (id.).” (18 N.Y.3d at 549)
“Needless to say, refusal evidence is probative of a defendant’s consciousness of guilt only if the defendant actually declined to take the test.” (18 N.Y.3d at 550)
“Since a reasonable motorist in defendant’s position would not have understood that, unlike the prior encounters, the further request to speak to an attorney would be interpreted by the troopers as a binding refusal to submit to a chemical test, defendant was not adequately warned that his conduct would constitute a refusal.” (18 N.Y.3d at 551)
“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.” (18 N.Y.3d at 552)
Factual background
New York State troopers stopped defendant's vehicle for a window-tinting violation and arrested him after detecting alcohol and observing failed field sobriety tests. Defendant received chemical-test warnings three times and repeatedly stated that he wanted to consult his attorney before deciding whether to submit to testing. The troopers allowed him to use a telephone and wait approximately thirty minutes for a return call, but they did not tell him that his time to deliberate had expired or that his continued request to speak with counsel would be treated as a refusal. The trial court admitted evidence of the alleged refusal and relied on it, together with other evidence, in convicting defendant of driving while ability impaired.
Procedural history
After defendant was stopped, arrested, and repeatedly asked to submit to chemical testing, the Town Court denied his motion to preclude refusal evidence. Following a bench trial, defendant was acquitted of driving while intoxicated but convicted of the lesser included offense of driving while ability impaired. The Appellate Term affirmed. The Court of Appeals reversed and ordered a new trial.
Remand instructions
Remit for a new trial.