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19 New York opinions name it 7 courts 1983–2016 0 in the last five years
The cases below were cited by New York courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
People v. Shawgreen2 sentences2014And the ma jority offers no reason why we should alter the easy-to-apply common-law rule deriving from People v Gursey ( 22 NY2d 224 [1968]); i.e.; that “a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests assistance of counsel” (People v Shaw, 72 NY2d 1032, 1033-1034 [1988] [emphases added], citing Gursey, 22 NY2d 224 ). 2014We subsequently confirmed that this privilege is triggered only “if [a motorist] requests assistance of counsel” and does so “before deciding whether to consent to a sobriety test” (Shaw, 72 NY2d at 1034 [emphases added]). | 3 | 11 |
People v. Hartgreen2 sentences2016To invoke this limited right, the request must be specific and unequivocal (see People v Higgins, 124 AD3d at 933-934 ; People v Vinogradov, 294 AD2d 708, 709 [2002]; People v Hart, 191 AD2d 991, 992 [1993], lv denied 81 NY2d 1014 [1993]). 2002In any event, while an individual arrested for DWI has a right to receive the aid of an attorney in deciding whether to submit to a sobriety test, any request for such assistance must be specifically made (see, People v Shaw, 72 NY2d 1032, 1033-1034 ; People v Bradway, 285 AD2d 831, 833 , lv denied 97 NY2d 639 ; People v Peabody, supra at 755 ; People v Hart, 191 AD2d 991, 992 , lv denied 81 NY2d 1014 ). | 2 | 3 |
People v. Smithgreen2 sentences2016“While an individual has the right to consult with an attorney in deciding whether to submit to a sobriety test, it is only a qualified right to counsel, not a constitutional one” (People v Curkendall, 12 AD3d 710, 714 [2004], lv denied 4 NY3d 743 [2004] [citations omitted]; see People v Smith, 18 NY3d 544, 548 [2012]; People v Higgins, 124 AD3d 929, 933 [2015]). 2014We have recently reiterated that the privilege is invoked “before responding to a request to take a chemical test” (People v Smith, 18 NY3d 544, 549 [2012] [emphasis added]). | 2 | 2 |
People v. Vinogradovgreen2 sentences2016To invoke this limited right, the request must be specific and unequivocal (see People v Higgins, 124 AD3d at 933-934 ; People v Vinogradov, 294 AD2d 708, 709 [2002]; People v Hart, 191 AD2d 991, 992 [1993], lv denied 81 NY2d 1014 [1993]). 2004Moreover, the request must be specific (see People v Vinogradov, supra at 708; People v Hart, 191 AD2d 991, 992 [1993], lv denied 81 NY2d 1014 [1993]). | 2 | 2 |
Schmerber v. Californiagreen2 sentences1987Unlike spoken or written testimony, or physical evidence such as a " 'nod or a head-shake’ ”, the sobriety test at issue here — blowing into a breathalyzer — in no way reveals what the defendant is thinking; rather, the significance of such evidence lies in the physical act itself, because the body’s response to the chemical test is "inherently different from the response * * * of a sober person.” (People v Boudreau, 115 AD2d 652, 654 [2d Dept 1985]; see, e.g., Schmerber v California, 384 US 757, 761, n 5 [1966]; People v Craft, 28 NY2d 274, 277 [1971] [no Miranda warnings necessary prior to w 1983In its decision in South Dakota v Neville ( 103 S Ct 916, 922 , supra), the Supreme Court noted that it had cautioned in Schmerber v California ( 384 US 757, 765, n 9 ) that its analysis of the Fifth Amendment issue assumed that the sobriety test in issue was not “so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer ‘confession’”. | 2 | 2 |
People v. Gurseygreen2 sentences2014And the ma jority offers no reason why we should alter the easy-to-apply common-law rule deriving from People v Gursey ( 22 NY2d 224 [1968]); i.e.; that “a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests assistance of counsel” (People v Shaw, 72 NY2d 1032, 1033-1034 [1988] [emphases added], citing Gursey, 22 NY2d 224 ). 2014And the ma jority offers no reason why we should alter the easy-to-apply common-law rule deriving from People v Gursey ( 22 NY2d 224 [1968]); i.e.; that “a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests assistance of counsel” (People v Shaw, 72 NY2d 1032, 1033-1034 [1988] [emphases added], citing Gursey, 22 NY2d 224 ). | 1 | 12 |
People v. Hagergreen2 sentences2004While an individual has the right to consult with an attorney in deciding whether to submit to a sobriety test (see People v Shaw, 72 NY2d 1032, 1033-1034 [1988]; People v Gursey, 22 NY2d 224, 228 [1968]), it is only a qualified right to counsel, not a constitutional one (see People v Hager, 69 NY2d 141, 142 [1987]; People v Shaw, supra at 1033-1034 ). 1987Unlike spoken or written testimony, or physical evidence such as a " 'nod or a head-shake’ ”, the sobriety test at issue here — blowing into a breathalyzer — in no way reveals what the defendant is thinking; rather, the significance of such evidence lies in the physical act itself, because the body’s response to the chemical test is "inherently different from the response * * * of a sober person.” (People v Boudreau, 115 AD2d 652, 654 [2d Dept 1985]; see, e.g., Schmerber v California, 384 US 757, 761, n 5 [1966]; People v Craft, 28 NY2d 274, 277 [1971] [no Miranda warnings necessary prior to w | 1 | 2 |
People v. Gibbsgreen1 sentence2016“While an individual has the right to consult with an attorney in deciding whether to submit to a sobriety test, it is only a qualified right to counsel, not a constitutional one” (People v Curkendall, 12 AD3d 710, 714 [2004], lv denied 4 NY3d 743 [2004] [citations omitted]; see People v Smith, 18 NY3d 544, 548 [2012]; People v Higgins, 124 AD3d 929, 933 [2015]). | 1 | 1 |
People v. Higginsgreen2 sentences2016“While an individual has the right to consult with an attorney in deciding whether to submit to a sobriety test, it is only a qualified right to counsel, not a constitutional one” (People v Curkendall, 12 AD3d 710, 714 [2004], lv denied 4 NY3d 743 [2004] [citations omitted]; see People v Smith, 18 NY3d 544, 548 [2012]; People v Higgins, 124 AD3d 929, 933 [2015]). 2016To invoke this limited right, the request must be specific and unequivocal (see People v Higgins, 124 AD3d at 933-934 ; People v Vinogradov, 294 AD2d 708, 709 [2002]; People v Hart, 191 AD2d 991, 992 [1993], lv denied 81 NY2d 1014 [1993]). | 1 | 1 |
People v. Andersongreen2 sentences2011The record thus lacks substantial evidence that petitioner “persisted in the refusal.” (Vehicle and Traffic Law § 1194 [2] [f|; People v Anderson, 89 AD3d 1161, 1162 [3d Dept 2011]; People v Richburg, 287 AD2d 790, 791 [3d Dept 2001]; see People v Burnet, 24 Misc 3d at 293 .) Persistence requires repetitive or unwavering conduct (People v Anderson, 89 AD3d at 1162 ; People v Richburg, 287 AD2d at 791-792 ; Dykeman v Jackson, 262 AD2d at 878 ; People v Bratcher, 165 AD2d at 907 ), a steadfast position, shown by a continued position despite opposition. 2011The record thus lacks substantial evidence that petitioner “persisted in the refusal.” (Vehicle and Traffic Law § 1194 [2] [f|; People v Anderson, 89 AD3d 1161, 1162 [3d Dept 2011]; People v Richburg, 287 AD2d 790, 791 [3d Dept 2001]; see People v Burnet, 24 Misc 3d at 293 .) Persistence requires repetitive or unwavering conduct (People v Anderson, 89 AD3d at 1162 ; People v Richburg, 287 AD2d at 791-792 ; Dykeman v Jackson, 262 AD2d at 878 ; People v Bratcher, 165 AD2d at 907 ), a steadfast position, shown by a continued position despite opposition. | 1 | 1 |
People v. Burnetgreen1 sentence2011The record thus lacks substantial evidence that petitioner “persisted in the refusal.” (Vehicle and Traffic Law § 1194 [2] [f|; People v Anderson, 89 AD3d 1161, 1162 [3d Dept 2011]; People v Richburg, 287 AD2d 790, 791 [3d Dept 2001]; see People v Burnet, 24 Misc 3d at 293 .) Persistence requires repetitive or unwavering conduct (People v Anderson, 89 AD3d at 1162 ; People v Richburg, 287 AD2d at 791-792 ; Dykeman v Jackson, 262 AD2d at 878 ; People v Bratcher, 165 AD2d at 907 ), a steadfast position, shown by a continued position despite opposition. | 1 | 1 |
People v. Richburggreen2 sentences2011The record thus lacks substantial evidence that petitioner “persisted in the refusal.” (Vehicle and Traffic Law § 1194 [2] [f|; People v Anderson, 89 AD3d 1161, 1162 [3d Dept 2011]; People v Richburg, 287 AD2d 790, 791 [3d Dept 2001]; see People v Burnet, 24 Misc 3d at 293 .) Persistence requires repetitive or unwavering conduct (People v Anderson, 89 AD3d at 1162 ; People v Richburg, 287 AD2d at 791-792 ; Dykeman v Jackson, 262 AD2d at 878 ; People v Bratcher, 165 AD2d at 907 ), a steadfast position, shown by a continued position despite opposition. 2011The record thus lacks substantial evidence that petitioner “persisted in the refusal.” (Vehicle and Traffic Law § 1194 [2] [f|; People v Anderson, 89 AD3d 1161, 1162 [3d Dept 2011]; People v Richburg, 287 AD2d 790, 791 [3d Dept 2001]; see People v Burnet, 24 Misc 3d at 293 .) Persistence requires repetitive or unwavering conduct (People v Anderson, 89 AD3d at 1162 ; People v Richburg, 287 AD2d at 791-792 ; Dykeman v Jackson, 262 AD2d at 878 ; People v Bratcher, 165 AD2d at 907 ), a steadfast position, shown by a continued position despite opposition. | 1 | 1 |
People v. Boudreaugreen1 sentence1987Unlike spoken or written testimony, or physical evidence such as a " 'nod or a head-shake’ ”, the sobriety test at issue here — blowing into a breathalyzer — in no way reveals what the defendant is thinking; rather, the significance of such evidence lies in the physical act itself, because the body’s response to the chemical test is "inherently different from the response * * * of a sober person.” (People v Boudreau, 115 AD2d 652, 654 [2d Dept 1985]; see, e.g., Schmerber v California, 384 US 757, 761, n 5 [1966]; People v Craft, 28 NY2d 274, 277 [1971] [no Miranda warnings necessary prior to w | 1 | 1 |
People v. Grasergreen1 sentence1987Unlike spoken or written testimony, or physical evidence such as a " 'nod or a head-shake’ ”, the sobriety test at issue here — blowing into a breathalyzer — in no way reveals what the defendant is thinking; rather, the significance of such evidence lies in the physical act itself, because the body’s response to the chemical test is "inherently different from the response * * * of a sober person.” (People v Boudreau, 115 AD2d 652, 654 [2d Dept 1985]; see, e.g., Schmerber v California, 384 US 757, 761, n 5 [1966]; People v Craft, 28 NY2d 274, 277 [1971] [no Miranda warnings necessary prior to w | 1 | 1 |
| People v. Shawgreen | 1 | 1 |
| People v. Sanchezgreen | 1 | 1 |
| People v. Craftgreen | 1 | 1 |
| People v. Thomasgreen | 1 | 1 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in New York. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
People v. O'Rama
neutral
2 sentences1999It is well settled that a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests the assistance of counsel and no danger of delay is posed (see, People v Gursey, 22 NY2d 224, 229 ; People v O’Rama, 162 AD2d 727 , revd on other grounds 78 NY2d 270 ). 1999However, a defendant does not have the right to refuse the test until a lawyer reaches the scene (see, People v O'Rama, supra). | 2 | 1991–1999 |
People v. Folk
green
1 sentence2016“While an individual has the right to consult with an attorney in deciding whether to submit to a sobriety test, it is only a qualified right to counsel, not a constitutional one” (People v Curkendall, 12 AD3d 710, 714 [2004], lv denied 4 NY3d 743 [2004] [citations omitted]; see People v Smith, 18 NY3d 544, 548 [2012]; People v Higgins, 124 AD3d 929, 933 [2015]). | 1 | 2016–2016 |
People v. Bratcher
green
1 sentence2011The record thus lacks substantial evidence that petitioner “persisted in the refusal.” (Vehicle and Traffic Law § 1194 [2] [f|; People v Anderson, 89 AD3d 1161, 1162 [3d Dept 2011]; People v Richburg, 287 AD2d 790, 791 [3d Dept 2001]; see People v Burnet, 24 Misc 3d at 293 .) Persistence requires repetitive or unwavering conduct (People v Anderson, 89 AD3d at 1162 ; People v Richburg, 287 AD2d at 791-792 ; Dykeman v Jackson, 262 AD2d at 878 ; People v Bratcher, 165 AD2d at 907 ), a steadfast position, shown by a continued position despite opposition. | 1 | 2011–2011 |
Dykeman v. Jackson
green
1 sentence2011The record thus lacks substantial evidence that petitioner “persisted in the refusal.” (Vehicle and Traffic Law § 1194 [2] [f|; People v Anderson, 89 AD3d 1161, 1162 [3d Dept 2011]; People v Richburg, 287 AD2d 790, 791 [3d Dept 2001]; see People v Burnet, 24 Misc 3d at 293 .) Persistence requires repetitive or unwavering conduct (People v Anderson, 89 AD3d at 1162 ; People v Richburg, 287 AD2d at 791-792 ; Dykeman v Jackson, 262 AD2d at 878 ; People v Bratcher, 165 AD2d at 907 ), a steadfast position, shown by a continued position despite opposition. | 1 | 2011–2011 |
People v. Peabody
green
1 sentence2002In any event, while an individual arrested for DWI has a right to receive the aid of an attorney in deciding whether to submit to a sobriety test, any request for such assistance must be specifically made (see, People v Shaw, 72 NY2d 1032, 1033-1034 ; People v Bradway, 285 AD2d 831, 833 , lv denied 97 NY2d 639 ; People v Peabody, supra at 755 ; People v Hart, 191 AD2d 991, 992 , lv denied 81 NY2d 1014 ). | 1 | 2002–2002 |
People v. Kearney
neutral
1 sentence2002Even upon a specific request, there is no absolute right to consult with an attorney before deciding whether to submit to a test. “ ‘If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test [or] submitting to revocation of his license, without the aid of counsel’ ” (People v DePonceau, 275 AD2d 994, 994 , lv denied 95 NY2d 962 , quoting People v Gursey, 22 NY2d 224, 228-229 ; see, Vehicle and Traffic Law § 1194 [1], [2]; People v Kearney, 261 AD2d 638, 638 , lv denied 93 NY2d 1020 ). | 1 | 2002–2002 |
People v. DePonceau
green
1 sentence2002Even upon a specific request, there is no absolute right to consult with an attorney before deciding whether to submit to a test. “ ‘If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test [or] submitting to revocation of his license, without the aid of counsel’ ” (People v DePonceau, 275 AD2d 994, 994 , lv denied 95 NY2d 962 , quoting People v Gursey, 22 NY2d 224, 228-229 ; see, Vehicle and Traffic Law § 1194 [1], [2]; People v Kearney, 261 AD2d 638, 638 , lv denied 93 NY2d 1020 ). | 1 | 2002–2002 |
People v. Bradway
green
1 sentence2002In any event, while an individual arrested for DWI has a right to receive the aid of an attorney in deciding whether to submit to a sobriety test, any request for such assistance must be specifically made (see, People v Shaw, 72 NY2d 1032, 1033-1034 ; People v Bradway, 285 AD2d 831, 833 , lv denied 97 NY2d 639 ; People v Peabody, supra at 755 ; People v Hart, 191 AD2d 991, 992 , lv denied 81 NY2d 1014 ). | 1 | 2002–2002 |
People v. O'Rama
green
1 sentence1999It is well settled that a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests the assistance of counsel and no danger of delay is posed (see, People v Gursey, 22 NY2d 224, 229 ; People v O’Rama, 162 AD2d 727 , revd on other grounds 78 NY2d 270 ). | 1 | 1999–1999 |
People v. Miller
green
1 sentence1998In our view, the Troopers’ observations combined with the sobriety test results support the jury’s determination that defendant was intoxicated beyond a reasonable doubt (see, People v Miller, 199 AD2d 692 , lv denied 82 NY2d 928 ). | 1 | 1998–1998 |
Michigan Department of State Police v. Sitz
green
1 sentence1992Recognizing that "[n]o one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it” ( 496 US, at 451 ), the Supreme Court held that such sobriety checkpoints do not vio late the Fourth Amendment. | 1 | 1992–1992 |
People v. Sweeney
green
1 sentence1991(Cf., Matter of Finocchairo v Kelly, 11 NY2d 58 [1962] [police denied defendant’s request for permission to telephone his lawyer before deciding to submit to a sobriety test]; People v Iannopollo, 131 Misc 2d 15 [Ontario County Ct 1983] [police deprived defendant of effective counsel by denying him a private telephone consultation with his attorney]; People v Stone, 128 Misc 2d 1009 [Crim Ct, Richmond County 1985] [police refusal to permit defendant use of the telephone in order to obtain legal counsel, one hour prior to the expiration of the two-hour time limit, thus violating defendant’s rig | 1 | 1991–1991 |
People v. Iannopollo
green
1 sentence1991(Cf., Matter of Finocchairo v Kelly, 11 NY2d 58 [1962] [police denied defendant’s request for permission to telephone his lawyer before deciding to submit to a sobriety test]; People v Iannopollo, 131 Misc 2d 15 [Ontario County Ct 1983] [police deprived defendant of effective counsel by denying him a private telephone consultation with his attorney]; People v Stone, 128 Misc 2d 1009 [Crim Ct, Richmond County 1985] [police refusal to permit defendant use of the telephone in order to obtain legal counsel, one hour prior to the expiration of the two-hour time limit, thus violating defendant’s rig | 1 | 1991–1991 |
People v. Rinaldi
green
1 sentence1991(Cf., Matter of Finocchairo v Kelly, 11 NY2d 58 [1962] [police denied defendant’s request for permission to telephone his lawyer before deciding to submit to a sobriety test]; People v Iannopollo, 131 Misc 2d 15 [Ontario County Ct 1983] [police deprived defendant of effective counsel by denying him a private telephone consultation with his attorney]; People v Stone, 128 Misc 2d 1009 [Crim Ct, Richmond County 1985] [police refusal to permit defendant use of the telephone in order to obtain legal counsel, one hour prior to the expiration of the two-hour time limit, thus violating defendant’s rig | 1 | 1991–1991 |
People v. Stone
neutral
1 sentence1991(Cf., Matter of Finocchairo v Kelly, 11 NY2d 58 [1962] [police denied defendant’s request for permission to telephone his lawyer before deciding to submit to a sobriety test]; People v Iannopollo, 131 Misc 2d 15 [Ontario County Ct 1983] [police deprived defendant of effective counsel by denying him a private telephone consultation with his attorney]; People v Stone, 128 Misc 2d 1009 [Crim Ct, Richmond County 1985] [police refusal to permit defendant use of the telephone in order to obtain legal counsel, one hour prior to the expiration of the two-hour time limit, thus violating defendant’s rig | 1 | 1991–1991 |
Finocchairo v. Kelly
green
1 sentence1991(Cf., Matter of Finocchairo v Kelly, 11 NY2d 58 [1962] [police denied defendant’s request for permission to telephone his lawyer before deciding to submit to a sobriety test]; People v Iannopollo, 131 Misc 2d 15 [Ontario County Ct 1983] [police deprived defendant of effective counsel by denying him a private telephone consultation with his attorney]; People v Stone, 128 Misc 2d 1009 [Crim Ct, Richmond County 1985] [police refusal to permit defendant use of the telephone in order to obtain legal counsel, one hour prior to the expiration of the two-hour time limit, thus violating defendant’s rig | 1 | 1991–1991 |
| South Dakota v. Neville green | 1 | 1983–1983 |
Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.