Breath Test Refusal Can't Be Used in DWI Trial

Requesting a Test After Two Hours of Arrest

One of the most damning things New York has is the jury instruction on breath test refusals. It allows the judge to tell the jury they can INFER a consciousness of the defendant's guilt (of DWI) if they refused to take a chemical test of blood or breath. Coming from a judge as an instruction on the law is a horrible hurdle on refusal DWIs. In the recent DWI case, the police waited till after two hours to request a test.


That doesn't make a chemical test of blood or breath inadmissible at trial BUT the refusal ...

Refusal to Take a New York Chemical Test Out of the Two Hour Window 

What is DEEMED consent in New York?

Police can legally request any motorist driving on the highways to take a chemical test of their blood or breath following an arrest for DWAI or DWI. That test for  maximum reliability, fairness, and accuracy should occur (not must occur) within two hours. If they don't give it in that time frame the test is still admissible but the weight of the evidence is weak or weaker.

Police Waiting to Request a Chemical Test is Fatal to the DWI Prosecution

In People v. Roy R., a 2018 DWI case Roy was in an accident, left the scene, returned after his girlfriend called him, admitted to driving (yeah), and refused a chemical test. But the timelines were confusing and he wasn't formally arrested until late in the game. The police requested chemical test came after the two hour mark.

The Court of Appeals held in People v. Odum¸ 2018 NY Slip Op 03173 [2018], that the “two-hour rule,” as a matter of law, also applies the one’s refusal to take a breath test. The Court of Appeals held, “[e]vidence of a driver’s refusal to take [a] chemical breath test used to determine blood-alcohol content, outside [the] two-hour period after the driver has been arrested for driving while intoxicated, is inadmissible in trial in which driving while intoxicated is alleged because it does not fall within [the] parameters of [the] vehicle and traffic law…” (id.). Simply stated, a person cannot refuse to take a test that is no longer authorized under the “deemed consent” provision in VTL §1194[2][a].

Argument over when the arrest occurred was simplified by the judge stating handcuffs equals an arrest.

An “arrest” occurs when an “intrusion is of such magnitude that [an] individual’s liberty of movement is significantly interrupted by police restraint” (see People v. Jones, 172 AD2d 265 [1st Dept 1991]). And, “handcuffs are generally recognized as a hallmark of [a] formal arrest” (see United States v. Familetti, 878 F3d 53 [2d Cir., 2017]).

The probable cause for the DWI arrest was made by the appearance of the defendant as was time of the arrest was then easy to acertain.

Here, Officer Martinucci had probable cause to arrest the defendant for driving while intoxicated as it “appear[ed] to be at least more probable than not that a crime has taken place and that the [defendant was the] perpetrator…” (People v. Carrasquillo, 54 NY2d 248, 254 [1981]) based on the observed indicia of intoxication and admission to driving (see People v. Thomas, 68 AD3d 482 [1st Dept 2009] [defendant's appearance combined with the smell of alcohol emanating from him gave the officer probable cause to arrest for driving while intoxicated]; People v. Creer, 31 Misc3d 1 [App Term, 1st Dept 2010] [same]). Accordingly, the court finds that the time of arrest is 12:49am, as testified to by Officer Martinucci because the defendant was placed in handcuffs and removed to the patrol vehicle’s back seat. 

Thus, his refusal is inadmissible at trial. 

Having a DWI refusal case without the refusal instruction is a huge victory here. Without a BAC number and without knowing more it will be hard to prosecute a DWI intoxication charge.