Opinion
03/2276.
Decided May 28, 2004.
Jeanine Ferris Pirro, Westchester County District Attorney, By: Kerrie Williams, Assistant District Attorney, White Plains Branch, White Plains, New York, for plaintiff.
Goodrich Bendish, John A. Raimondo, White Plains, New York, Attorneys for Defendant Of Counsel.
Motion pursuant to CPL § 710.60 for an order suppressing all evidence of the defendant's refusal to submit to a chemical test of his blood is denied.
The defendant is charged with one count of driving while intoxicated, a violation of VTL § 1192 (3) and one count of driving the wrong way on a one-way road, a violation of VTL § 1127 (a). At approximately 3:20 a.m., a White Plains police officer observed the defendant driving in the wrong direction on South Broadway in the City of White Plains. As a result, his vehicle was stopped by the officer and the defendant was directed to produce his license and registration. During this encounter, the officer observed signs of intoxication and ordered the defendant to step out of his vehicle. A field sobriety test was administered. At that time, the officer smelled the odor of alcohol on the defendant's breath. The officer also observed that the defendant was staggering and that he exhibited impaired motor coordination. The results of an alco-sensor test indicated .09% BAC. Having failed the field sobriety test, the defendant was placed under arrest and the officer requested that he submit to a chemical test of his blood at White Plains Hospital. The defendant refused.
In support of the motion to suppress, the defendant points out that the cost of a blood test at White Plains Hospital is approximately four-hundred dollars and that payment for the blood test is borne by the individual tested. The defendant asserts that this policy is unfair in that it has the effect of discouraging an individual from submitting to the test. It is further argued that the White Plains Police Department should "maintain the in-house resources to administer" a chemical test of the blood and that the current practice of bringing an individual to the White Plains Hospital for testing is both "unusual and suspicious."
Vehicle and Traffic Law § 1194 (2) (f) provides as follows: "Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal." The Court of Appeals has held that the foregoing section is not violative of a defendant's rights under either the Federal or New York State Constitution so long as a defendant is under no compulsion of any sort to refuse to take the test ( People v. Thomas, 46 N.Y.2d 100).
As a general rule "[c]onduct of the accused indicative of a guilty mind is admissible on the theory that an inference of guilt may be drawn from consciousness of guilt." Prince-Richardson On Evidence, § 4-611. See e.g. People v. Luongo, 47 N.Y.2d 418 (1979) (destruction of documents); People v. Torres, 179 A.D.2d 696 (2d Dept. 1992) (defendant's attempt to change appearance); People v. Reyes, 162 A.D.2d 357 (1st Dept. 1990) (threatening a witness). Consistent with the foregoing, a defendant's refusal to submit to a chemical test of his blood permits a jury to infer a consciousness of guilt (see People v. D'Angelo, 244 A.D.2d 788 [3d Dept. 1997]; People v. Selsmeyer, 128 A.D.2d 922 [3d Dept. 1987]; People v. Kurtz, 92 A.D.2d 962 [3d Dept. 1983]; People v. Haitz, 65 A.D.2d 172 [4th Dept. 1978]).
It is equally well-settled that when the prosecution offers evidence tending to establish a defendant's consciousness of guilt, the defendant may explain his behavior and is entitled to the benefit of any explanation consistent with his innocence ( see e.g. People v. Price, 135 A.D.2d 750 [2d Dept. 1987]; People v. Yaghnam, 135 A.D.2d 763 [2d Dept. 1987]). In accord with this principle, the Court of Appeals has stated in a footnote that a defendant charged with driving while intoxicated may rebut the adverse inference of his refusal to submit to a chemical test by proffering an explanation unrelated to any apprehension as to the test results ( see People v. Thomas, 46 N.Y.2d 100, 109 n 2). In reaching this conclusion, the Court of Appeals cited with approval the decision of the highest court of a sister state.
In Commonwealth v. Robinson, 229 Pa.Super. 131 (1974) the defendant was charged with operating a motor vehicle while under the influence of an intoxicating liquor. In affirming the conviction, the Superior Court of Pennsylvania recognized that ". . . a person may refuse to take a test for reasons that have nothing whatever to do with his guilt or innocence. He may, for example, believe that the test is unreliable or against his religious scruples. These possibilities, however, affect the weight rather than the admissibility of evidence of refusal." Robinson, at 148.
A second and well-reasoned decision from the highest court of Wisconsin is instructive. In People v. Bolstad, 124 Wis.2d 576 (1985) the defendant was charged with an intoxication related offense and refused to permit a blood test. At trial, the defendant made an offer of proof and explained that he wanted a physician and not a technician to draw the blood. The trial court precluded the defendant from offering an explanation regarding his refusal. In reversing the defendant's conviction, the Supreme Court of Wisconsin held that the defendant's explanation was relevant and may have rebutted the inference that he feared the test would reveal his intoxication. In reaching this determination, the Court stated ". . . that any evidence that tends to rebut or diminish the force of that permissible inference is also relevant, for it tends to make less probable the fact of intoxication. . . . Thus, evidence that would tend to show that the refusal was for reasons unrelated to a consciousness of guilt or the fear that the test would reveal the intoxication, tends to abrogate, or at least diminish, the reasonableness of the inference to be drawn from an unexplained refusal to take the alcohol test." Bolstad, at 585-586. See also Cox v. The People of the State of Colorado, 735 P.2d 153, 159 (1987) (evidence that would tend to show that the refusal was for reasons unrelated to a consciousness of guilt or the fear that the test would reveal the intoxication should be allowed to controvert the inference to be drawn from an unexplained refusal to take the alcohol test).
Further support for a defendant's right to rebut the adverse inference which may be drawn from his refusal is found in the Criminal Jury Instruction for driving while intoxicated: "Under our law, if a person has been given a clear and unequivocal warning of the consequences of refusing to submit to a chemical test and persists in refusing to submit to such test, and there is no innocent explanation for such refusal, then the jury may, but is not required to, infer that the defendant refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol in violation of law." CJI2d [NY] Vehicle and Traffic Law § 1192(3).
Turning to the arguments raised in the motion, it should be noted that the defendant does not challenge the propriety of the refusal warnings given by the officer ( see People v. Gangale, 249 A.D.2d 413 [2d Dept. 1998]). Nor does the defendant effectively challenge the police officer's authority to decide the type of test to be administered (see Matter of Gilman v. Passidomo, 109 A.D.2d 1082 [4th Dept. 1985]). Rather, the moving papers attack in general terms the White Plains Police Department's policy of having a defendant bear the cost of a chemical test of the blood. However, absent from the defendant's papers are allegations demonstrating that, at the time of his refusal, he was aware of the monetary cost associated with the test and his responsibility for the payment of same. Nor does the defendant allege that he was financially unable to pay for the test. In summary, the defendant fails to allege that his refusal was in any way influenced by the cost of the test and his personal obligation to pay White Plains Hospital.
No factual basis for suppression having been offered on the motion, the Court summarily denies the defendant's application. However, to the extent the defendant has an innocent explanation for his refusal to submit to the test, same may be offered to rebut the adverse inference which the jury may consider in reaching its verdict.
Last, the Appellate Division has noted that in an intoxication-related offense law enforcement has an investigative obligation to scientifically determine a defendant's blood alcohol content (see People v. Winchell, 250 A.D.2d 942 [3rd Dept. 1998]). It may be that the cost of a chemical test associated with the arrest and prosecution of a defendant charged with driving while intoxicated constitutes a law enforcement operating expense ( see generally People v. Purcell, 161 A.D.2d 812 [2d Dept. 1990]). Whether the cost of such test is properly borne by the White Plains Police Department as a law enforcement operating expense need not be reached in this case.
Papers considered by the Court are as follows:
1. Order to Show Cause 1
2. Affirmation of John A. Raimondo 2
3. Exhibit A 3
4. Affirmation of Francis J. Carroll 4
5. Memorandum of Law 5