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12 New York opinions name it 4 courts 1995–2013 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. Gibbsgreen2 sentences2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to 2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to | 2 | 2 |
People v. Craftgreen2 sentences2013The police are not obligated to administer Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) prior to a chemical BAG test because no testimonial compulsion is involved and the defendant does not have the right to counsel at this stage of the investigation (see People v Craft, 28 NY2d 274, 277-278 [1971]; see also People v Hager, 69 NY2d 141, 142 [1987] [Miranda warnings not required prior to physical performance tests, which do not violate the defendant’s privilege against self-incrimination under either the Federal or State Constitution]). 2013These holdings implicitly are at odds with the indelible right to counsel in the interrogation context (see People v Grice, 100 NY2d at 320-321 ), but consistent with the rule that there is no state or federal constitutional right to counsel during the investigatory stage involving the chemical BAG test, except for the limited right arising upon a defendant’s request (see People v Craft, 28 NY2d 274, 277-278 [1971]). | 2 | 2 |
Amaro v. City of New Yorkgreen2 sentences2013The court properly excluded the results of a BAG test performed almost one year after the initial test and expert testimony as to the results, because no proper foundation was laid therefor (see Amaro v City of New York, 40 NY2d 30, 35 [1976]; Westchester Med. 2013The court properly excluded the results of a BAG test performed almost one year after the initial test and expert testimony as to the results, because no proper foundation was laid therefor (see Amaro v City of New York, 40 NY2d 30, 35 [1976]; Westchester Med. | 2 | 2 |
People v. Vinogradovgreen2 sentences2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to 2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to | 2 | 2 |
People v. Thomasgreen2 sentences2013A defendant has no constitutional right to refuse to take a chemical test (see People v Shaw, 72 NY2d at 1033 ). “[I]nasmuch as a defendant can constitutionally be compelled to take such a test, he has no constitutional right not to take one” (People v Thomas, 46 NY2d 100, 106 [1978]). 2013A defendant has no constitutional right to refuse to take a chemical test (see People v Shaw, 72 NY2d at 1033 ). “[I]nasmuch as a defendant can constitutionally be compelled to take such a test, he has no constitutional right not to take one” (People v Thomas, 46 NY2d 100, 106 [1978]). | 2 | 2 |
People v. Hagergreen2 sentences2013The police are not obligated to administer Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) prior to a chemical BAG test because no testimonial compulsion is involved and the defendant does not have the right to counsel at this stage of the investigation (see People v Craft, 28 NY2d 274, 277-278 [1971]; see also People v Hager, 69 NY2d 141, 142 [1987] [Miranda warnings not required prior to physical performance tests, which do not violate the defendant’s privilege against self-incrimination under either the Federal or State Constitution]). 2013The police are not obligated to administer Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) prior to a chemical BAG test because no testimonial compulsion is involved and the defendant does not have the right to counsel at this stage of the investigation (see People v Craft, 28 NY2d 274, 277-278 [1971]; see also People v Hager, 69 NY2d 141, 142 [1987] [Miranda warnings not required prior to physical performance tests, which do not violate the defendant’s privilege against self-incrimination under either the Federal or State Constitution]). | 2 | 2 |
People v. Holbrookgreen2 sentences2013However, echoing the Victory court’s concerns about the scientific reliability of such evidence, the court concluded that “[e]ven though admissible, the scientific relevancy of a BAG test administered after two-hours may still be challenged by the defendant as the test results are no longer presumed to be accurate” ( 9 Misc 3d 1104[A] , 2005 NY Slip Op 51395[U] , *4 n 9; see also People v Holbrook, 20 Misc 3d 920, 924-925 [Sup Ct, Bronx County 2008] [“Until Atkins is clarified, the prosecution must demonstrate, through expert testimony at a hearing, the scientific reliability and probative nat 2013However, echoing the Victory court’s concerns about the scientific reliability of such evidence, the court concluded that “[e]ven though admissible, the scientific relevancy of a BAG test administered after two-hours may still be challenged by the defendant as the test results are no longer presumed to be accurate” ( 9 Misc 3d 1104[A] , 2005 NY Slip Op 51395[U] , *4 n 9; see also People v Holbrook, 20 Misc 3d 920, 924-925 [Sup Ct, Bronx County 2008] [“Until Atkins is clarified, the prosecution must demonstrate, through expert testimony at a hearing, the scientific reliability and probative nat | 1 | 2 |
People v. Victorygreen2 sentences2013Thus, in People v Victory ( 166 Misc 2d 549, 562 [Crim Ct, Kings County 1995]) the court cautioned that “BAG tests beyond two hours may no longer be scientifically relevant and probative of the issue of intoxication.” Accordingly, the court imposed a requirement that a BAG test administered more than two hours after arrest must be demonstrated by expert testimony “to be scientifically reliable and probative on the issue of intoxication in order to be admitted into evidence” (id. at 564). 2013Thus, in People v Victory ( 166 Misc 2d 549, 562 [Crim Ct, Kings County 1995]) the court cautioned that “BAG tests beyond two hours may no longer be scientifically relevant and probative of the issue of intoxication.” Accordingly, the court imposed a requirement that a BAG test administered more than two hours after arrest must be demonstrated by expert testimony “to be scientifically reliable and probative on the issue of intoxication in order to be admitted into evidence” (id. at 564). | 1 | 2 |
People v. Pacergreen2 sentences2010However, such records do not result from structured police questioning, they are not ere ated in response to any effort at gathering incriminating evidence against a particular accused, they reflect objective facts without discretionary aspect, they do not involve opinions or conclusions relevant to a particular investigation, and they do not constitute “a direct accusation of an essential element of any offense” (id.; see People v Pacer, 6 NY3d 504, 510 [2006]). 2006Although prepared, to an extent, in recognition of their necessity in the event of litigation and constituting a part of the foundational predicate for the admission of BAG test evidence, the certificates did not result from structured police questioning, they were not created at official request “to gather incriminating evidence against a particular individual” (People v Bradley, 22 AD3d at 42 ; see People v Foster, 27 NY2d 47, 52 [1970] [speedometer deviation records admissible as business records because they were not produced “outside of the ordinary course of police . . . business, solely | 1 | 2 |
People v. Atkinsgreen2 sentences2008In People v Atkins ( 85 NY2d 1007 [1995]), the Court of Appeals, in a split four to three decision, allowed a BAG test to be admitted into evidence where the defendant consented to take the test within two hours of his arrest, but where the test was not administered until two hours and 28 minutes after the arrest. 2008In People v Atkins ( 85 NY2d 1007 [1995]), the Court of Appeals, in a split four to three decision, allowed a BAG test to be admitted into evidence where the defendant consented to take the test within two hours of his arrest, but where the test was not administered until two hours and 28 minutes after the arrest. | 1 | 2 |
People v. Lebrechtgreen2 sentences2010Proof that a BAG testing machine functions properly may exonerate as well as incriminate and represents merely the application of an objective procedure which does not involve the exercise of judgment and discretion, expressions of opinion, and making conclusions” ( 13 Misc 3d at 49 [internal quotation marks and citations omitted]). 2010Calibration and maintenance records are created “in recognition of their necessity in the event of litigation and constitute] a part of the foundational predicate for the admission of BAG test evidence” (Le brecht, 13 Misc 3d at 49 ). | 1 | 1 |
Green v. DeMarcogreen1 sentence2006Although prepared, to an extent, in recognition of their necessity in the event of litigation and constituting a part of the foundational predicate for the admission of BAG test evidence, the certificates did not result from structured police questioning, they were not created at official request “to gather incriminating evidence against a particular individual” (People v Bradley, 22 AD3d at 42 ; see People v Foster, 27 NY2d 47, 52 [1970] [speedometer deviation records admissible as business records because they were not produced “outside of the ordinary course of police . . . business, solely | 1 | 1 |
People v. Jonesgreen2 sentences2006There was no evidence that the officer failed to observe any event that would have undermined the accuracy of the test results, and, in any event, proof of the requisite “continuous observation” is not a predicate condition for the test results’ admission; rather, it “goes only to the weight to be afforded the test result” (People v Terrance, 120 AD2d 805 , 807 [1986]; People v Jones, 10 Misc 3d 413, 417 [Dutchess County Ct 2005] [same]). 2006There was no evidence that the officer failed to observe any event that would have undermined the accuracy of the test results, and, in any event, proof of the requisite “continuous observation” is not a predicate condition for the test results’ admission; rather, it “goes only to the weight to be afforded the test result” (People v Terrance, 120 AD2d 805 , 807 [1986]; People v Jones, 10 Misc 3d 413, 417 [Dutchess County Ct 2005] [same]). | 1 | 1 |
People v. Fostergreen1 sentence2006Although prepared, to an extent, in recognition of their necessity in the event of litigation and constituting a part of the foundational predicate for the admission of BAG test evidence, the certificates did not result from structured police questioning, they were not created at official request “to gather incriminating evidence against a particular individual” (People v Bradley, 22 AD3d at 42 ; see People v Foster, 27 NY2d 47, 52 [1970] [speedometer deviation records admissible as business records because they were not produced “outside of the ordinary course of police . . . business, solely | 1 | 1 |
People v. Campbellgreen2 sentences2004In the absence of this foundation, the BAG test results should not have been admitted (see People v Campbell, 73 NY2d 481, 484 [1989]; cf. People v Hampe, 181 AD2d 238 , 240 n [1992]). 2004In the absence of this foundation, the BAG test results should not have been admitted (see People v Campbell, 73 NY2d 481, 484 [1989]; cf. People v Hampe, 181 AD2d 238 , 240 n [1992]). | 1 | 1 |
People v. Ericksongreen2 sentences2004Given the arresting offi cer’s testimony as to what he observed, the results of the field sobriety tests and defendant’s admissions, there is no significant probability of acquittal on count two of the indictment had the evidence of the BAG test been excluded (see People v Heidelmark, 214 AD2d 767, 769 [1995], lv denied 85 NY2d 973 [1995]; People v Erickson, 156 AD2d 760, 762-763 [1989], lv denied 75 NY2d 966 [1990]). 2004Given the arresting offi cer’s testimony as to what he observed, the results of the field sobriety tests and defendant’s admissions, there is no significant probability of acquittal on count two of the indictment had the evidence of the BAG test been excluded (see People v Heidelmark, 214 AD2d 767, 769 [1995], lv denied 85 NY2d 973 [1995]; People v Erickson, 156 AD2d 760, 762-763 [1989], lv denied 75 NY2d 966 [1990]). | 1 | 1 |
People v. Heidelmarkgreen2 sentences2004Given the arresting offi cer’s testimony as to what he observed, the results of the field sobriety tests and defendant’s admissions, there is no significant probability of acquittal on count two of the indictment had the evidence of the BAG test been excluded (see People v Heidelmark, 214 AD2d 767, 769 [1995], lv denied 85 NY2d 973 [1995]; People v Erickson, 156 AD2d 760, 762-763 [1989], lv denied 75 NY2d 966 [1990]). 2004Given the arresting offi cer’s testimony as to what he observed, the results of the field sobriety tests and defendant’s admissions, there is no significant probability of acquittal on count two of the indictment had the evidence of the BAG test been excluded (see People v Heidelmark, 214 AD2d 767, 769 [1995], lv denied 85 NY2d 973 [1995]; People v Erickson, 156 AD2d 760, 762-763 [1989], lv denied 75 NY2d 966 [1990]). | 1 | 1 |
| South Dakota v. Nevillegreen | 1 | 1 |
| People v. Sesmangreen | 1 | 1 |
| People v. Aligreen | 1 | 1 |
| People v. Katesgreen | 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. Shaw
green
2 sentences2013A defendant has no constitutional right to refuse to take a chemical test (see People v Shaw, 72 NY2d at 1033 ). “[I]nasmuch as a defendant can constitutionally be compelled to take such a test, he has no constitutional right not to take one” (People v Thomas, 46 NY2d 100, 106 [1978]). 2013A defendant has no constitutional right to refuse to take a chemical test (see People v Shaw, 72 NY2d at 1033 ). “[I]nasmuch as a defendant can constitutionally be compelled to take such a test, he has no constitutional right not to take one” (People v Thomas, 46 NY2d 100, 106 [1978]). | 2 | 2013–2013 |
People v. Mora-Hernandez
green
2 sentences2013The limited right to counsel is invoked only upon an express request by the defendant to consult his or her attorney prior to making the decision whether to submit to a chemical BAG test or to exercise the qualified right to refuse (see People v Gursey, 22 NY2d at 228 ; People v Mora-Hernandez, 77 AD3d 531 [2010] [the defendant made repeated requests for counsel prior to the administration of the test]). 2013The limited right to counsel is invoked only upon an express request by the defendant to consult his or her attorney prior to making the decision whether to submit to a chemical BAG test or to exercise the qualified right to refuse (see People v Gursey, 22 NY2d at 228 ; People v Mora-Hernandez, 77 AD3d 531 [2010] [the defendant made repeated requests for counsel prior to the administration of the test]). | 2 | 2013–2013 |
People v. Grice
green
2 sentences2013These holdings implicitly are at odds with the indelible right to counsel in the interrogation context (see People v Grice, 100 NY2d at 320-321 ), but consistent with the rule that there is no state or federal constitutional right to counsel during the investigatory stage involving the chemical BAG test, except for the limited right arising upon a defendant’s request (see People v Craft, 28 NY2d 274, 277-278 [1971]). 2013These holdings implicitly are at odds with the indelible right to counsel in the interrogation context (see People v Grice, 100 NY2d at 320-321 ), but consistent with the rule that there is no state or federal constitutional right to counsel during the investigatory stage involving the chemical BAG test, except for the limited right arising upon a defendant’s request (see People v Craft, 28 NY2d 274, 277-278 [1971]). | 2 | 2013–2013 |
People v. Gursey
green
2 sentences2013The limited right to counsel is invoked only upon an express request by the defendant to consult his or her attorney prior to making the decision whether to submit to a chemical BAG test or to exercise the qualified right to refuse (see People v Gursey, 22 NY2d at 228 ; People v Mora-Hernandez, 77 AD3d 531 [2010] [the defendant made repeated requests for counsel prior to the administration of the test]). 2013The limited right to counsel is invoked only upon an express request by the defendant to consult his or her attorney prior to making the decision whether to submit to a chemical BAG test or to exercise the qualified right to refuse (see People v Gursey, 22 NY2d at 228 ; People v Mora-Hernandez, 77 AD3d 531 [2010] [the defendant made repeated requests for counsel prior to the administration of the test]). | 2 | 2013–2013 |
Miranda v. Arizona
green
2 sentences2013The police are not obligated to administer Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) prior to a chemical BAG test because no testimonial compulsion is involved and the defendant does not have the right to counsel at this stage of the investigation (see People v Craft, 28 NY2d 274, 277-278 [1971]; see also People v Hager, 69 NY2d 141, 142 [1987] [Miranda warnings not required prior to physical performance tests, which do not violate the defendant’s privilege against self-incrimination under either the Federal or State Constitution]). 2013The police are not obligated to administer Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) prior to a chemical BAG test because no testimonial compulsion is involved and the defendant does not have the right to counsel at this stage of the investigation (see People v Craft, 28 NY2d 274, 277-278 [1971]; see also People v Hager, 69 NY2d 141, 142 [1987] [Miranda warnings not required prior to physical performance tests, which do not violate the defendant’s privilege against self-incrimination under either the Federal or State Constitution]). | 2 | 2013–2013 |
People v. Hart
green
2 sentences2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to 2013A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant’s statements that he should have counsel did not unequivocally inform the police of his intention to | 2 | 2013–2013 |
Vega v. Restani Construction Corp.
green
1 sentence2013(See Vega, 18 NY3d at 503 .) As with any set of summary judgment motions, this is a highly fact-intensive inquiry that is circumscribed by the circumstances of this case. | 1 | 2013–2013 |
People v. Donaldson
green
2 sentences2009(People v Donaldson, 36 AD2d 37 [4th Dept 1971].) Indeed, since Donaldson was decided, it has been unnecessary for the prosecution to introduce “expert testimony as to the nature, function or scientific principles underlying” the test. ( 36 AD2d at 40 .) As long as the People establish that “the testing device was in proper working order at the time the test was administered to the defendant and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions,” the results of the testing are admissible. 2009(People v Donaldson, 36 AD2d 37 [4th Dept 1971].) Indeed, since Donaldson was decided, it has been unnecessary for the prosecution to introduce “expert testimony as to the nature, function or scientific principles underlying” the test. ( 36 AD2d at 40 .) As long as the People establish that “the testing device was in proper working order at the time the test was administered to the defendant and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions,” the results of the testing are admissible. | 1 | 2009–2009 |
People v. Orpin
neutral
1 sentence2006(Thus the results) are neither discretionary nor based upon opinion”]; cf. People v Orpin, 8 Misc 3d 768 [Just Ct, Town of Irondequoit, Monroe County 2005]). | 1 | 2006–2006 |
Sukljian v. Charles Ross & Son Co.
green
2 sentences2006There was no evidence that the officer failed to observe any event that would have undermined the accuracy of the test results, and, in any event, proof of the requisite “continuous observation” is not a predicate condition for the test results’ admission; rather, it “goes only to the weight to be afforded the test result” (People v Terrance, 120 AD2d 805 , 807 [1986]; People v Jones, 10 Misc 3d 413, 417 [Dutchess County Ct 2005] [same]). 2006There was no evidence that the officer failed to observe any event that would have undermined the accuracy of the test results, and, in any event, proof of the requisite “continuous observation” is not a predicate condition for the test results’ admission; rather, it “goes only to the weight to be afforded the test result” (People v Terrance, 120 AD2d 805 , 807 [1986]; People v Jones, 10 Misc 3d 413, 417 [Dutchess County Ct 2005] [same]). | 1 | 2006–2006 |
People v. Rogers
green
1 sentence2006Although prepared, to an extent, in recognition of their necessity in the event of litigation and constituting a part of the foundational predicate for the admission of BAG test evidence, the certificates did not result from structured police questioning, they were not created at official request “to gather incriminating evidence against a particular individual” (People v Bradley, 22 AD3d at 42 ; see People v Foster, 27 NY2d 47, 52 [1970] [speedometer deviation records admissible as business records because they were not produced “outside of the ordinary course of police . . . business, solely | 1 | 2006–2006 |
People v. Bradley
green
1 sentence2006Although prepared, to an extent, in recognition of their necessity in the event of litigation and constituting a part of the foundational predicate for the admission of BAG test evidence, the certificates did not result from structured police questioning, they were not created at official request “to gather incriminating evidence against a particular individual” (People v Bradley, 22 AD3d at 42 ; see People v Foster, 27 NY2d 47, 52 [1970] [speedometer deviation records admissible as business records because they were not produced “outside of the ordinary course of police . . . business, solely | 1 | 2006–2006 |
People v. Grogan
green
1 sentence2006Although prepared, to an extent, in recognition of their necessity in the event of litigation and constituting a part of the foundational predicate for the admission of BAG test evidence, the certificates did not result from structured police questioning, they were not created at official request “to gather incriminating evidence against a particular individual” (People v Bradley, 22 AD3d at 42 ; see People v Foster, 27 NY2d 47, 52 [1970] [speedometer deviation records admissible as business records because they were not produced “outside of the ordinary course of police . . . business, solely | 1 | 2006–2006 |
| People v. Hampe green | 1 | 2004–2004 |
| White v. Fisher green | 1 | 1995–1995 |
| People v. Bryan DD. green | 1 | 1995–1995 |
| People v. Capraella neutral | 1 | 1995–1995 |
| Schmerber v. California green | 1 | 1995–1995 |
| People v. Abel green | 1 | 1995–1995 |
| Cook v. Adduci green | 1 | 1995–1995 |
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.