The opinion of the court was delivered by: Martin Marcus, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In this case the defendant was charged with Aggravated Driving While Intoxicated Per Se in violation of VTL § 1192(2-a), and related crimes.*fn1 After a hearing conducted on October 31, 2008, I denied the defendant's motion to suppress the results of a breathalyzer test, finding that she had voluntarily consented to its administration. Based on the fact that the test was administered more than three hours after her arrest, the defendant moved for another pre-trial hearing, this one to decide whether the test was relevant in determining the alcohol level in her blood more than three hours earlier. After consideration of the parties' oral and written submissions, and for the reasons set forth below, I denied the defendant's motion.
According to the facts adduced at the suppression hearing, at approximately 1:10 a.m. on February 4, 2007, Officer Andrew Hernandez observed the defendant seated in the driver's seat of a stationary motor vehicle inside a public park which had closed after dark. The keys were in the ignition of the vehicle, and the engine was running. Upon approaching the defendant, Officer Hernandez smelled alcohol on her breath and noticed that her face was flushed and her eyes were watery. Once the defendant complied with Officer Hernandez's request to step out of the vehicle, Officer Hernandez observed that she had difficulty keeping her balance. Concluding that the defendant was intoxicated, Officer Hernandez placed her under arrest at approximately 1:17 a.m.
Officer Hernandez and the defendant arrived at the 45th Precinct at approximately 1:40 a..m., but had to wait while earlier DWI arrests were processed. At about 4:23 a.m., another police officer, Officer Kennedy, asked the defendant whether she was willing to take the breathalyzer test and she said, "yes." The process of calibrating the machine began immediately, and the test was administered at 4:30 a.m. The test indicated that the defendant had a blood alcohol level of.194.
Section 1194 of the Vehicle and Traffic Law sets forth the authority of the police to test a person's blood or breath to determine the alcoholic content in her blood. A person who operates a motor vehicle in this state is "deemed to have given consent to [such] a chemical test" when three requirements are met: the test is to be administered "by or at the direction of a police officer;" the officer has reasonable grounds to believe the person [had been] operating the vehicle in violation of any subdivision of VTL § 1192; and the test is conducted "within two hours after such person has been placed under arrest for any such violation." VTL § 1194(2)(a)(1). The Court of Appeals has held that when the requisite reasonable grounds exist, even an unconscious person is "deemed to have given consent" to a chemical test, so long as the test is conducted within the two hour limit. People v. Kates, 53 NY2d 591 (1981). Because a person is "deemed to consent" to a test given within two hours of arrest, if the test is requested within that time, but the person in fact refuses to submit to it, evidence of the refusal is admissible at trial "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." VTL § 1194(2)(f). See People v. Thomas, 46 NY2d 100, 103 (1978)(rejecting claim that allowing evidence of refusal to be submitted to jury violates defendant's privilege against self-incrimination).
Given the requirements of VTL § 1194(2)(a)(1), when more than two hours have passed since a defendant's arrest, the defendant is no longer "deemed to have given consent" to the chemical test. The question thus arises whether, when the defendant expressly consents to the test under such circumstances, its results are admissible at trial. The Court of Appeals has definitively answered this question. In People v. Atkins, 85 NY2d 1007, 1009 (1995), the defendant had "expressly and voluntarily consented to administration of the blood test" within two hours of his arrest, but the test was not conducted until more than two hours after it. Rejecting the argument that the two-hour time limit is "an absolute rule of relevance, proscribing admission of the results of any chemical test administered after that period regardless of the nature of the driver's consent," the Court unequivocally held that "the two-hour limitation contained in VTL § 1194 (2)(a) has no application here...." Id.
Even before Atkins, in People v. Mills, 124 AD2d 600 (2d Dept. 1986), the defendant, who had been involved in a fatal automobile accident, moved to suppress the results of a blood test administered with his consent because the People had failed to establish that the test was administered within two hours of his arrest. The Second Department upheld the denial of the motion, holding that "[t]he requirement that the blood sample be obtained within two hours after arrest... is relevant only with regard to blood samples obtained in cases where no express consent has been given." 124 AD2d at 601.
Not surprisingly, "since Atkins, appellate courts have consistently ruled that the two-hour rule has no application where actual, uncoerced consent is given...." People v. Burns, 13 Misc 3d 1208(A), *4, (Dist. Ct. Nassau Co. 2006)(emphasis in original; citations omitted); see People v. Zawacki, 244 AD2d 954, 955 (4th Dept. 1997)(noting that "the Court of Appeals has held that the two-hour limit is inapplicable to chemical tests administered pursuant to defendant's actual consent"); People v. Turner, 234 AD2d 704, 706 (3d Dept. 1996)("defendant's consent to the test renders the two-hour limit inapplicable...")(citing Atkins).
Pointing to several lower court decisions, the defendant nonetheless insists that another pre-trial hearing is necessary before the results of a test administered with the defendant's consent more than two hours after arrest may be admitted at trial. In People v. Victory, 166 Misc 2d 549, 550 (Crim. Ct. Kings Co. 1995), the court held that:
upon objection of the defense, the prosecution must establish, at a hearing by expert testimony, scientific evidence that a blood-alcohol content (BAC) test taken more than two hours after the arrest of the defendant is competent, reliable and probative of the fact that the defendant was impaired or intoxicated when he operated a motor vehicle before such results may be admitted as relevant evidence at the trial.
Relying on Judge Simons' dissent in Atkins,*fn2 and secondary scientific sources concerning the measurement of alcohol in an individual's blood, the court determined that "there [was] ample scientific evidence that the delay between the time of the arrest and the time a chemical test is given might significantly reduce the reliability of the evidence if that time period is too great." 166 Misc 2d at 558-559.
A few trial courts have followed Victory. See e.g., People v. Holbrook, 20 Misc 3d 920 (Sup. Ct. Bronx Co. 2008)(evidence of breathalyzer test suppressed where prosecution failed to establish the scientific reliability of test results obtained more than two hours after arrest); People v. Kenny, 9 Misc 3d 1104A, *5, fn.9, 806 NYS2d 447 (Crim. Ct. Richmond Co. 2005)("Even though admissible, the scientific relevancy of a BAC test administered after two-hours may still be challenged by the defendant as the test results are no longer presumed to be accurate"). However, requiring the pre-trial hearing ordered in Victory would undermine the judicial recognition of the reliability afforded to the breathalyzer test more than three decades ago. People v. Donaldson, 36 AD2d 37 (4th Dept. 1971). Indeed, since Donaldson was decided, it has been unnecessary for the prosecution to introduce "expert testimony as to the nature, function or scientific principles underlying" the test. 36 AD2d at 41. As long as the People establish that "the testing device was in proper working order at the time the test was administered to the defendant and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions," the results of the testing are admissible. People v. Freeland, 68 NY2d 699, 700 (1986)(citations omitted). The novel requirement pronounced by Victory ignores this long-standing precedent.
In reaching its conclusions, Victory also brushed aside the determinations the Legislature made in enacting the statutory scheme of VTL § 1194. As the Court of Appeals recognized in Atkins when it rejected a per se rule against the admission of the results of tests administered more than two hours after arrest, the argument that such tests are or, as in this case, may be irrelevant in determining the defendant's blood alcohol level at the time of arrest, "is completely undermined by the lack of a corresponding time limit for court-ordered chemical testing under section 1194(3)... or [for] the additional test ...