two-hour rule in New York

2022To that end, the applicability of the probative nature of the two-hour rule has been limited to the confines of deemed consent and has not been applied to the admissibility of the results of chemical tests obtained by section 1194 (3) court order (see People v McGrath, 73 NY2d 826 [1988], affd on op below 135 AD2d 60 [2d Dept 1988]), upon a defendant’s voluntary consent to take the test more than two hours after arrest (see People v Atkins, 85 NY2d 1007, 1009 [1995]; People v Smith, 18 NY3d 544 , 548 n 1 [2012]; cf. People v Odum, 31 NY3d 344, 346 [2018]) or pursuant to a search warrant (see P

2018Specifically, we are asked to pick up where this Court left off in People v. Atkins , 85 N.Y.2d 1007 , 630 N.Y.S.2d 965 , 654 N.E.2d 1213 [1995], and answer whether the two-hour rule in Vehicle and Traffic Law § 1194(2)(a), which governs the deemed consent scenario, nonetheless applies to the administration of refusal *1042 warnings to a motorist who thereafter expressly consents to a breath test more than two hours from arrest.

2005The two-hour rule was codified in Vehicle and Traffic Law § 1194 (2) and the New York State Department of Health Regulations (10 NYCRR 59.2 [c] [2]) in 1941 because “the human body rapidly metabolizes alcohol, the two-hour requirement was enacted to ensure that the results of the blood test constituted probative evidence of the defendant’s blood alcohol level at the time of the operation of the vehicle.” {See, Mem of Assemblyman Peterson in Support, Bill Jacket, L 1941, ch 726.) In People v Victory ( 166 Misc 2d 549, 556 [Crim Ct, Kings County 1995]), the court held that “[i]n order to have so

2005The two-hour rule was codified in Vehicle and Traffic Law § 1194 (2) and the New York State Department of Health Regulations (10 NYCRR 59.2 [c] [2]) in 1941 because “the human body rapidly metabolizes alcohol, the two-hour requirement was enacted to ensure that the results of the blood test constituted probative evidence of the defendant’s blood alcohol level at the time of the operation of the vehicle.” {See, Mem of Assemblyman Peterson in Support, Bill Jacket, L 1941, ch 726.) In People v Victory ( 166 Misc 2d 549, 556 [Crim Ct, Kings County 1995]), the court held that “[i]n order to have so

2002This two-hour rule was enacted in 1941 when the Legislature provided that the results of tests measuring a driver’s BAG be admissible at trial if the test was administered within two hours of arrest (L 1941, ch 726, amdg Vehicle and Traffic Law former § 70 [5]; see generally, People v Ali, 151 Misc 2d 742 [Crim Ct, NY County 1991] for historical analysis of the two-hour rule).

1995The First Department, Appellate Division has not addressed the two-hour rule, however, lower courts within the First Department are divided on its interpretation (see, People v Dillin, NYLJ, Oct. 5, 1990, at 23, col 3 [Crim Ct, NY County] [following Mills]; People v Ali, 151 Misc 2d 742 [Crim Ct, NY County 1991] [not following Mills]).

2022To that end, the applicability of the probative nature of the two-hour rule has been limited to the confines of deemed consent and has not been applied to the admissibility of the results of chemical tests obtained by section 1194 (3) court order (see People v McGrath, 73 NY2d 826 [1988], affd on op below 135 AD2d 60 [2d Dept 1988]), upon a defendant’s voluntary consent to take the test more than two hours after arrest (see People v Atkins, 85 NY2d 1007, 1009 [1995]; People v Smith, 18 NY3d 544 , 548 n 1 [2012]; cf. People v Odum, 31 NY3d 344, 346 [2018]) or pursuant to a search warrant (see P

2022We emphasized that the 1973 statute authorizing the admissibility of evidence of a test refusal at a criminal trial was in derogation of common law and concluded as a result that the statutory provision authorizing such admission—Vehicle and Traffic Law § 1194 (2) (f)—had to be strictly construed to include the two-hour rule (see 31 NY3d at 353 ).4 In stark contrast, the limitation on the scope of the revocation hearing in section 1194 (2) (c) is not in derogation of the common law and is a subsequently enacted provision that specifically governs the issues that may be considered at an adminis

2018Finally, in People v. Finnegan , 85 N.Y.2d 53 , 59, 623 N.Y.S.2d 546 , 647 N.E.2d 758 (1995), we held "[n]othing in the unambiguous language of [the statute] indicates that the Legislature intended to cross-reference or incorporate" the two-hour rule to section 1194(4) on independent physician tests.

2018Finally, in People v. Finnegan , 85 N.Y.2d 53 , 59, 623 N.Y.S.2d 546 , 647 N.E.2d 758 (1995), we held "[n]othing in the unambiguous language of [the statute] indicates that the Legislature intended to cross-reference or incorporate" the two-hour rule to section 1194(4) on independent physician tests.

2022To that end, the applicability of the probative nature of the two-hour rule has been limited to the confines of deemed consent and has not been applied to the admissibility of the results of chemical tests obtained by section 1194 (3) court order (see People v McGrath, 73 NY2d 826 [1988], affd on op below 135 AD2d 60 [2d Dept 1988]), upon a defendant’s voluntary consent to take the test more than two hours after arrest (see People v Atkins, 85 NY2d 1007, 1009 [1995]; People v Smith, 18 NY3d 544 , 548 n 1 [2012]; cf. People v Odum, 31 NY3d 344, 346 [2018]) or pursuant to a search warrant (see P

2018Indeed, we have long narrowed the applicability of the two-hour rule to the ***361 confines of deemed consent. 5 **265 To be sure, in Atkins , we held that a defendant may provide express consent to undergo a chemical test at any time, thus rendering the two-hour requirement irrelevant ( see 85 N.Y.2d at 1009 , 630 N.Y.S.2d 965 , 654 N.E.2d 1213 ; see also Smith , 18 N.Y.3d at 548 n. 1, 942 N.Y.S.2d 426 , 965 N.E.2d 928 [2012] ["Although time is of the essence in obtaining chemical test evidence, if a defendant agrees to take the test, there is no per se statutory bar on admission of the resul

2013As codified in former section 70 (5), the two-hour requirement applied to the entire statute and served as a “rule of an evidentiary nature” (People v Morales, 161 Misc 2d 128, 130 [Crim Ct, Kings County 1994]).

1998See, People v Morales (supra) for an elucidative pre-Atkins analysis of the two-hour rule.

2013People v Ward ( 176 Misc 2d 398, 401-402 [Sup Ct, Richmond County 1998]) followed Morales in concluding that the two-hour rule no longer governed evidence of intoxication obtained after two hours and that such evidence therefore was admissible.

2005Specifically, they presume that the defendant’s BAG at the time of the test will be lower than his BAG at the time of the operation of the motor vehicle; this is not always true. 3 Some courts have maintained that “considering the reasoning in Brol (supra) in conjunction with several subsequent decisions interpreting the scope of the two-hour rule, it seems clear that today the rule has no application in a determination of the admissibility of evidence that a defendant refused a chemical test” (People v Ward, 176 Misc 2d 398, 401 [Sup Ct, Richmond County 1998]). 4 This court respectfully disag

2013In reaching its conclusion, the Atkins Court rejected the argument that the two-hour time limit is “an absolute rule of relevance, proscribing admission of the results of any chemical test administered after that period regardless of the nature of the driver’s consent.” (Id.; see also People v Zawacki, 244 AD2d 954, 955 [4th Dept 1997] [holding that “the two-hour limit is inapplicable to chemical tests administered pursuant to defendant’s actual consent” (citation omitted)].) Because Atkins abandoned the two-hour rule in cases where there was actual consent to a chemical test, some trial court

2009The Second Department upheld the denial of the motion, holding that “[t]he requirement that the blood sample be obtained within two hours after arrest... is relevant only with regard to blood samples obtained in cases where no express consent has been given.” ( 124 AD2d at 601 .) Not surprisingly, “since Atkins , appellate courts have consistently ruled that the two-hour rule has no application where actual, uncoerced consent is given.” (People v Burns, 13 Misc 3d 1208[A] , 2006 NY Slip Op 51731[U] , *4 [Nassau Dist Ct 2006] [citations omitted]; see People v Zawacki, 244 AD2d 954 , 955 [4th De

2009The Second Department upheld the denial of the motion, holding that “[t]he requirement that the blood sample be obtained within two hours after arrest... is relevant only with regard to blood samples obtained in cases where no express consent has been given.” ( 124 AD2d at 601 .) Not surprisingly, “since Atkins , appellate courts have consistently ruled that the two-hour rule has no application where actual, uncoerced consent is given.” (People v Burns, 13 Misc 3d 1208[A] , 2006 NY Slip Op 51731[U] , *4 [Nassau Dist Ct 2006] [citations omitted]; see People v Zawacki, 244 AD2d 954 , 955 [4th De

1995The facts in Mills (supra) demonstrate the old legal adage by Justice Holmes that hard facts make bad law. 4 Harry Mills, Jr. was a college student and the son of a Town Justice who was driving an automobile which was involved in an accident which left a mother of two dead. 5 After Mills pleaded guilty to criminally negligent homicide (Penal Law § 125.10) and received what may be argued is a light sentence, 6 the defendant appealed the sentence and all decisions made on prior motions, including a decision holding all provisions of Vehicle and Traffic Law § 1194, including the two-hour rule, in

2022To that end, the applicability of the probative nature of the two-hour rule has been limited to the confines of deemed consent and has not been applied to the admissibility of the results of chemical tests obtained by section 1194 (3) court order (see People v McGrath, 73 NY2d 826 [1988], affd on op below 135 AD2d 60 [2d Dept 1988]), upon a defendant’s voluntary consent to take the test more than two hours after arrest (see People v Atkins, 85 NY2d 1007, 1009 [1995]; People v Smith, 18 NY3d 544 , 548 n 1 [2012]; cf. People v Odum, 31 NY3d 344, 346 [2018]) or pursuant to a search warrant (see P

2018Additionally, in People v. McGrath , we affirmed the Appellate Division decision holding the two-hour rule inapplicable to section 1194(3) on tests obtained by court orders ( see 135 A.D.2d 60 , 62, 524 N.Y.S.2d 214 [2d Dept. 1988], affd for reasons stated below 73 N.Y.2d 826 , 537 N.Y.S.2d 480 , 534 N.E.2d 318 [1988] ["Nothing in the unambiguous language of [ section 1194(2)(a) ] indicates that the Legislature intended to impose a specific time limitation on the performance of court-ordered chemical tests.

2018Rather, Atkins held only that the section 1194(2)(a) is inapplicable when a defendant has voluntarily consented because that statute is concerned only with those " 'required to submit' " ( id. at 1008 , 630 N.Y.S.2d 965 , 654 N.E.2d 1213 , quoting Ward , 307 N.Y. at 77 , 120 N.E.2d 211 ).

1990The two-hour requirement of Vehicle and Traffic Law former § 1194 (1) does not pertain to those cases in which, as here, a defendant consents to the procedure (see, People v Mills, 124 AD2d 600, 601 , lv denied 69 NY2d 953 ; see also, People v Ward, 307 NY 73, 76-78 ).

2017(See People v Kates, 53 NY2d 591 [1981].) “The only remnant of the two-hour rule, and, in fact, the only time that the words ‘two hours’ even appear in [Vehicle and Traffic Law] section 1194, is in section 1194(2)(a).

1987(Schmerber v California, supra, at 760-765; People v Kates, supra, at 594 ; People v Boudreau, 115 AD2d 652 [2d Dept 1985]; People v Graser, supra, at 225 .) The People contend defendant’s "consent” to submit to the breathalyzer test constitutes a waiver of the two-hour requirement of Vehicle and Traffic Law § 1194.

2013One line of cases, exemplified by the Appellate Division for the Fourth Department in People v Brol ( 81 AD2d 739, 740 [4th Dept 1981]) continued to treat the two-hour requirement as an evidentiary rule applying to the entire statute, including the refusal provision in section 1194 (2) (f).

2005Specifically, they presume that the defendant’s BAG at the time of the test will be lower than his BAG at the time of the operation of the motor vehicle; this is not always true. 3 Some courts have maintained that “considering the reasoning in Brol (supra) in conjunction with several subsequent decisions interpreting the scope of the two-hour rule, it seems clear that today the rule has no application in a determination of the admissibility of evidence that a defendant refused a chemical test” (People v Ward, 176 Misc 2d 398, 401 [Sup Ct, Richmond County 1998]). 4 This court respectfully disag

2018Therefore, we have already largely confined the statutory two-hour rule to the deemed consent scenario and nothing more. 6 ***362 Here, the issue framed is the allegedly illegal seizure by police of the evidence of a breath test because it was taken without defendant's voluntary consent ( see People v. Kuhn , 33 N.Y.2d 203 , 208-209, 351 N.Y.S.2d 649 , 306 N.E.2d 777 [1973] ).

2018Therefore, we have already largely confined the statutory two-hour rule to the deemed consent scenario and nothing more. 6 ***362 Here, the issue framed is the allegedly illegal seizure by police of the evidence of a breath test because it was taken without defendant's voluntary consent ( see People v. Kuhn , 33 N.Y.2d 203 , 208-209, 351 N.Y.S.2d 649 , 306 N.E.2d 777 [1973] ).

2018Especially at the statute's inception, when technological advancements in this area were less developed, a prompt breath test was presumably a more accurate measurement of BAC ( see People v. Washington , 23 N.Y.3d 228 , 231, 989 N.Y.S.2d 670 , 12 N.E.3d 1099 [2014] ), the legal limit of which has since been reduced by nearly half.

2018Especially at the statute's inception, when technological advancements in this area were less developed, a prompt breath test was presumably a more accurate measurement of BAC ( see People v. Washington , 23 N.Y.3d 228 , 231, 989 N.Y.S.2d 670 , 12 N.E.3d 1099 [2014] ), the legal limit of which has since been reduced by nearly half.

1987The court reasoned that since "[o]ne of those guidelines is that the test must be performed within two hours after the defendant’s arrest” (People v D’Angelo, supra, at 1051), the Legislature intended that the two-hour requirement apply to section 1194-a.

1987Thus, for example, it has been recognized that the two-hour requirement does not extend to blood samples obtained by court order pursuant to Vehicle and Traffic Law § 1194-a, where there has been a refusal to submit to a request for a blood test (see, People v Morse, 127 Misc 2d 468 ; contra, People v D’Angelo, 124 Misc 2d 1050 ).” (People v Mills, 124 AD2d 600, 601 , supra.) While this statement suggests that the Appellate Division would agree with the holding of Morse (supra), it is by no means the holding of the Appellate Division nor is this court bound by this statement.

2025See VTL §1194(2)(f); see also People v Robinson , 82 AD3d 1269 (2d Dept 2011) (two-hour rule only applies to person incapable of consenting and not to instances where defendant voluntarily takes test or where he refuses).

2025See VTL §1194(2)(f); see also People v Robinson , 82 AD3d 1269 (2d Dept 2011) (two-hour rule only applies to person incapable of consenting and not to instances where defendant voluntarily takes test or where he refuses).

2022We emphasized that the 1973 statute authorizing the admissibility of evidence of a test refusal at a criminal trial was in derogation of common law and concluded as a result that the statutory provision authorizing such admission—Vehicle and Traffic Law § 1194 (2) (f)—had to be strictly construed to include the two-hour rule (see 31 NY3d at 353 ).4 In stark contrast, the limitation on the scope of the revocation hearing in section 1194 (2) (c) is not in derogation of the common law and is a subsequently enacted provision that specifically governs the issues that may be considered at an adminis

2019"The Court of Appeals has held that the two-hour rule' gives the court broad discretion to discharge any juror whom it determines is not likely to appear within two hours" ( People v Kimes , 37 AD3d 1, 19 [1st Dept 2006], lv denied 8 NY3d 881 [2007], citing People v Jeanty , 94 NY2d 507, 516-17 [2000]).

2019"The Court of Appeals has held that the two-hour rule' gives the court broad discretion to discharge any juror whom it determines is not likely to appear within two hours" ( People v Kimes , 37 AD3d 1, 19 [1st Dept 2006], lv denied 8 NY3d 881 [2007], citing People v Jeanty , 94 NY2d 507, 516-17 [2000]).