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DWI And The Right to Counsel Under 1194(2)(b) Before The Breathalyzer Test


People v. Washington

2014 Slip Op 03190

Decided May 6, 2014

New York Court of Appeals

Issue: whether the police are obligated to advise a defendant of the fact that his attorney is seeking to communicate with him by phone prior to administering the breathalyzer test. And if the defendant is not informed of his attorney’s attempted communication, should the test results of the breathalyzer be suppressed for violation of right to counsel.

Holding: the New York Court of Appeals held that the defendant has a limited right to counsel prior to taking the breath test as long as it does not interfere with the administration of the test.  in this case it did not and the Court found that defendant was deprived of his statutory based right to counsel under 1194(2)(b) and the test results were suppressed.

Facts: Defendant Jonai Washington was driving an automobile. She struck and killed a pedestrian after she had consumed four beers “a while ago.”  She failed field sobriety tests and was arrested for driving while intoxicated.

Defendant’s family contacted an attorney. The lawyer telephoned the Sheriff’s Department and asked the sergeant to instruct police officers not to question or test his client.

At the same time, police were processing defendant and advising her about the need for a chemical test to determine her blood alcohol content.  Police read a standard chemical test authorization to defendant at 3:30 A.M. She then signed the form, indicating her consent to take the breathalyzer test. Defendant was not informed about the attorney’s communication before initiation of the breathalyzer test at 3:39 A.M.

Consequently, defendant was indicted for second-degree manslaughter, second-degree vehicular manslaughter and two counts of driving while intoxicated. She moved to suppress the results of the breathalyzer, claiming that it had been administered in violation of her right to counsel. Following an evidentiary hearing, Supreme Court agreed with defendant and suppressed the chemical test results.

Legal Analysis: Since alcohol metabolically dissipates from the bloodstream it is a time-sensitive proposition; the police endeavor to administer chemical tests as close in time as possible to the motor vehicle infraction, typically within two hours.

To promote this objective, operators of motor vehicles in New York are deemed to have issued consent to chemical testing under Vehicle & Traffic Law § 1194 (2) (a). 1194 “grants a motorist a qualified right to decline to voluntarily take a chemical test” after being warned that a refusal will result in the immediate suspension and ultimate revocation of the motorist’s driver’s license for one year. In general, “an uncounseled waiver of the statutory right to refuse the test provides no basis for suppressing the results.

In People v Gursey (22 NY2d 224 [1968]), however, the Court of Appeals recognized a limited right of the accused to seek legal assistance. Based on the warning procedure set forth in section 1194 (2) (b), if a defendant is arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police ‘may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication. Violation of this right to legal consultation generally requires suppression of the scientific evidence (see People v Smith, 18 NY3d at 550).

It is therefore well established that there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing. conferring with counsel is permissible only if such access does not interfere unduly with timely administration of the test.

The issue then is whether counsel’s intervention just prior to commencement of testing requires suppression of the results under these facts.

In the court’s view, the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically. The police therefore must advise the accused that a lawyer has made contact on the accused’s behalf. Once so informed, the accused may choose to consult with counsel or forego that option and proceed with the chemical test.

In this case, when the attorney telephoned the police to intervene on defendant’s behalf, the police should have informed defendant of this development since breathalyzer testing had not yet begun. Defendant could then have decided if she wished to discuss her situation with counsel. Since the police officers here made no effort to advise defendant about the lawyer’s communication and the People did not demonstrate that a notification of this nature would have been unreasonable under the circumstances, we hold that the chemical test was administered in violation of the statutorily-based Gursey right to counsel. Consequently, the courts below correctly concluded that defendant is entitled to suppression of the test results.