Feb 16 (Reuters) - Refusing to submit to a
breathalyzer test before speaking to an attorney is the same as
simply refusing, but only when there is adequate warning from
police, the Court of Appeals has ruled.
In a unanimous decision released Thursday, the court held
that police may only require a defendant to decide whether or
not to submit to a test without counsel, if they have first
given warning that the test must be administered within a
relatively short amount of time.
"A defendant who has asked to consult with an attorney can
be required to make a decision without the benefit of counsel's
advice on the question," Judge Victoria Graffeo wrote for the
court.
Howard Smith refused to take a breath test -- a statutory
right in New York -- during a 2007 traffic stop in Rockland
County, explaining that he first wanted to speak with his
lawyer. He was brought to state police barracks, where he made
an unsuccessful attempt to contact the attorney. Thirty minutes
later, he again refused to take the test until he spoke with his
lawyer. The police interpreted that as a final refusal.
At trial, Smith moved to suppress the prosecutor's argument
that his refusal was tantamount to consciousness of guilt. The
motion was denied and Smith was ultimately convicted of driving
while impaired.
On appeal, he argued that he was never told that waiting for
his attorney would be interpreted as a refusal to take the test.
The Appellate Division, Second Department, in 2010 affirmed his
conviction, and the Court of Appeals reversed.
"The troopers did not indicate at any point that (blood
alcohol) tests were to be administered promptly or that
defendant's time to make a decision was limited," Graffeo wrote.
She noted that prosecutors expressed a concern that a
reversal would add to the number of warnings police must give to
drunk drivers, potentially increasing the chances of securing a
reversal on a technicality.
But the evidence against Smith would have been admissible,
the judge wrote, if "troopers had merely alerted defendant that
his time for deliberation had expired."
The case is the People v. Howard Smith, New York State Court
of Appeals No. 28.
For the prosecution: Assistant Rockland County District
Attorney Itamar Yeger
For Smith: Kathleen Wells of Larkin Axelrod Ingrassia &
Tetenbaum
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