refusal to take test in New York

2024In making its determination, the Smith court pointed to the "comparable admonition" in People v O'Rama, 78 NY2d 270 [1991], where officers specifically advised the Defendant that they would deem the Defendant's insistence to consult with an attorney before taking the chemical test, despite his inability to reach a lawyer, a refusal.

2024In making its determination, the Smith court pointed to the "comparable admonition" in People v O'Rama, 78 NY2d 270 [1991], where officers specifically advised the Defendant that they would deem the Defendant's insistence to consult with an attorney before taking the chemical test, despite his inability to reach a lawyer, a refusal.

2018As defendant notes, when the deemed consent provision was first enacted in 1953 as section 71-a of the Vehicle and Traffic Law, motorists had an absolute right to refuse the test-subject only to immediate license revocation ( see Kates , 53 N.Y.2d at 596 , 444 N.Y.S.2d 446 , 428 N.E.2d 852 )-and evidence of a refusal to take the test was never admissible ( see People v. Paddock , 29 N.Y.2d 504 , 323 N.Y.S.2d 976 , 272 N.E.2d 486 [1971] ; People v. Stratton , 1 N.Y.2d 664 , 150 N.Y.S.2d 29 , 133 N.E.2d 516 [1956], affg 286 App.Div. 323 , 143 N.Y.S.2d 362 [3d Dept. 1955] ).

2018As defendant notes, when the deemed consent provision was first enacted in 1953 as section 71-a of the Vehicle and Traffic Law, motorists had an absolute right to refuse the test-subject only to immediate license revocation ( see Kates , 53 N.Y.2d at 596 , 444 N.Y.S.2d 446 , 428 N.E.2d 852 )-and evidence of a refusal to take the test was never admissible ( see People v. Paddock , 29 N.Y.2d 504 , 323 N.Y.S.2d 976 , 272 N.E.2d 486 [1971] ; People v. Stratton , 1 N.Y.2d 664 , 150 N.Y.S.2d 29 , 133 N.E.2d 516 [1956], affg 286 App.Div. 323 , 143 N.Y.S.2d 362 [3d Dept. 1955] ).

2018As defendant notes, when the deemed consent provision was first enacted in 1953 as section 71-a of the Vehicle and Traffic Law, motorists had an absolute right to refuse the test-subject only to immediate license revocation ( see Kates , 53 N.Y.2d at 596 , 444 N.Y.S.2d 446 , 428 N.E.2d 852 )-and evidence of a refusal to take the test was never admissible ( see People v. Paddock , 29 N.Y.2d 504 , 323 N.Y.S.2d 976 , 272 N.E.2d 486 [1971] ; People v. Stratton , 1 N.Y.2d 664 , 150 N.Y.S.2d 29 , 133 N.E.2d 516 [1956], affg 286 App.Div. 323 , 143 N.Y.S.2d 362 [3d Dept. 1955] ).

2018As defendant notes, when the deemed consent provision was first enacted in 1953 as section 71-a of the Vehicle and Traffic Law, motorists had an absolute right to refuse the test-subject only to immediate license revocation ( see Kates , 53 N.Y.2d at 596 , 444 N.Y.S.2d 446 , 428 N.E.2d 852 )-and evidence of a refusal to take the test was never admissible ( see People v. Paddock , 29 N.Y.2d 504 , 323 N.Y.S.2d 976 , 272 N.E.2d 486 [1971] ; People v. Stratton , 1 N.Y.2d 664 , 150 N.Y.S.2d 29 , 133 N.E.2d 516 [1956], affg 286 App.Div. 323 , 143 N.Y.S.2d 362 [3d Dept. 1955] ).

2018As defendant notes, when the deemed consent provision was first enacted in 1953 as section 71-a of the Vehicle and Traffic Law, motorists had an absolute right to refuse the test-subject only to immediate license revocation ( see Kates , 53 N.Y.2d at 596 , 444 N.Y.S.2d 446 , 428 N.E.2d 852 )-and evidence of a refusal to take the test was never admissible ( see People v. Paddock , 29 N.Y.2d 504 , 323 N.Y.S.2d 976 , 272 N.E.2d 486 [1971] ; People v. Stratton , 1 N.Y.2d 664 , 150 N.Y.S.2d 29 , 133 N.E.2d 516 [1956], affg 286 App.Div. 323 , 143 N.Y.S.2d 362 [3d Dept. 1955] ).

2018As defendant notes, when the deemed consent provision was first enacted in 1953 as section 71-a of the Vehicle and Traffic Law, motorists had an absolute right to refuse the test—subject only to immediate license revocation ( see Kates , 53 NY2d at 596 )—and evidence of a refusal to take the test was never admissible ( see People v Paddock , 29 NY2d 504 [1971]; People v Stratton , 1 NY2d 664 [1956], affg 286 App Div 323 [3d Dept 1955]).

1999Moreover, “[a]s an alternative to refusal, defendant had a legitimate option available to [her], the choice of which would have involved no forfeiture of a constitutional privilege or a statutory right” (People v Thomas, supra, 46 NY2d, at 108 ): she could have performed the tests.

1984(People v Thomas, supra.) However, in that case the court was dealing with a refusal to take the test and the subsequent use of that fact as evidence at the trial.

2026Regarding the voluntariness of the defendant's statements to law enforcement, there is no basis for suppression under People v Huntley ( 15 NY2d 72 [1965]).

2022Due process concerns with respect to the chemical test procedure and the revocation provision (see Matter of Schutt v Macduff, 205 Misc 43 [Sup Ct, Orange County 1954]) led to the statute’s amendment the following year to require an administrative hearing prior to license revocation (L 1954, ch 320).

2018Therefore, it should be strictly construed ( see Rust v. Reyer , 91 N.Y.2d 355 , 360, 670 N.Y.S.2d 822 , 693 N.E.2d 1074 [1998] ; see also McKinney's Cons Laws of NY, Book 1, Statutes § 304), further supporting an interpretation of the statute that would apply the two-hour limitation in Vehicle and Traffic Law § 1194(2)(a) to the evidentiary provision in Vehicle and Traffic Law § 1194(2)(f).

2018Therefore, it should be strictly construed ( see Rust v. Reyer , 91 N.Y.2d 355 , 360, 670 N.Y.S.2d 822 , 693 N.E.2d 1074 [1998] ; see also McKinney's Cons Laws of NY, Book 1, Statutes § 304), further supporting an interpretation of the statute that would apply the two-hour limitation in Vehicle and Traffic Law § 1194(2)(a) to the evidentiary provision in Vehicle and Traffic Law § 1194(2)(f).

2018In his concurrence, Judge Jasen urged the legislature to amend the statute to permit evidence of refusals because "there is no constitutional right to refuse to submit to such a test, [and] it necessarily follows that there can be no constitutional prohibitions to prevent comment upon the accused's failure to take the test" ( Paddock , 29 NY2d at 505 [Jasen, J., concurring];{** 31 NY3d at 353 } see Sponsor's Mem at 2, Bill Jacket, L 1973, ch 351 [noting that "the prohibition on commenting on the refusal to take the test is strictly statutory"]).

2015For example, in Matter of Van Sickle v Melton ( 64 AD2d 846 [4th Dept 1978]), where, as here, a driver repeatedly pretended to blow into a breathalyzer, the Court concluded that this conduct amounted to a refusal to take the test.

2005(White v Melton, 60 AD2d 1000 [4th Dept 1978].) On the other hand, where the officer failed to expressly instruct a defendant to refrain from placing any object in his mouth, the defendant was not deemed to have refused to take the test by placing gum in his mouth.

1989There was no evidence of coercion, illegal conduct, deception as to identity or purpose (see, 3 LaFave, Search and Seizure § 8.2 [2d ed]), and the record fails to support defendant’s contention that the Trooper’s conduct in continuing to explain the implications of a refusal to take the test and indication of urgency amounted to unreasonable pressure that overcame defendant’s will to resist (see, People v Stisi, 93 AD2d 951 ).

1989This court holds that such is not the law in this State in light of the holding of the Court of Appeals in People v Shaw (supra), People v Hager ( 69 NY2d 141 ), and Schmerber v California (supra).

1989This court holds that such is not the law in this State in light of the holding of the Court of Appeals in People v Shaw (supra), People v Hager ( 69 NY2d 141 ), and Schmerber v California (supra).

1989The court erred, however, in concluding that defendant waived the physician-patient privilege by cross-examining certain witnesses about her physical condition and in admitting the hospital’s diagnostic test. "[A] party does not waive the privilege whenever forced to defend an action in which his or her mental or physical condition is in controversy” (Dillenbeck v Hess, 73 NY2d 278, 287-288 ).

1989This court holds that such is not the law in this State in light of the holding of the Court of Appeals in People v Shaw (supra), People v Hager ( 69 NY2d 141 ), and Schmerber v California (supra).

1989That court held that the refusal to take the test is an admission against penal interest and requires full warnings under Miranda v Arizona ( 384 US 436 ) before such a refusal can be entered into evidence.

1985(South Dakota v Neville, 459 US 553 [1983].) The basis of the court’s decision was that there was no impermissible coercion exerted upon the defendant to take the test or refuse the test.