Opinion
1999-08524
Argued May 28, 2002.
June 25, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Copertino, J.), rendered September 7, 1999, convicting him of operating a motor vehicle under the influence of alcohol as a felony, upon a jury verdict, and imposing sentence.
Seth Muraskin, Melville, N.Y. (Matthew Muraskin of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera and Michael J. Miller of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.
ORDERED that the judgment is affirmed.
"It is well settled that a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a [Breathalyzer] test, if he [or she] requests the assistance of counsel and no danger of delay is posed" (People v. Kearney, 261 A.D.2d 638; see People v. Gursey, 22 N.Y.2d 224, 229; People v. O'Rama, 162 A.D.2d 727, revd on other grounds 78 N.Y.2d 270). However, a defendant does not have the "absolute right to refuse the test until a lawyer reaches the scene" (People v. Gursey, supra at 229). If a defendant refuses to take a Breathalyzer test, evidence of such refusal is admissible at trial if the defendant was given clear and unequivocal warning of the effect of the refusal to submit to the test (see People v. Thomas, 46 N.Y.2d 100, 108).
The defendant's contention that his request to speak to an attorney should not be construed as a refusal to consent to a Breathalyzer test is without merit (see Matter of Boyce v. Commissioner of New York State Dept. of Motor Vehicles, 215 A.D.2d 476, 477; People v. Peabody, 206 A.D.2d 754, 755; Matter of O'Brien v. Melton, 61 A.D.2d 1091). Moreover, the record indicates that the defendant was accurately apprised of the consequences of his refusal to submit to the Breathalyzer test (see People v. Thomas, supra).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
SANTUCCI, J.P., McGINITY, LUCIANO and ADAMS, JJ., concur.