The opinion of the court was delivered by: Graffeo, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
As a consequence of a motor vehicle stop, defendant was convicted of driving while ability impaired. On appeal, he maintained that the trial court erred in permitting the People to introduce -- as proof of consciousness of guilt -- evidence that he refused to take a chemical breath test to determine his blood alcohol content when requested to do so by State Troopers. We agree and we therefore reverse the conviction and remit for a new trial.
On March 28, 2007, at approximately 3:30 A.M., New York State Troopers stopped defendant's vehicle on the Palisades Parkway in Rockland County for a window tinting violation. When the troopers smelled alcohol on defendant's breath, he was asked to exit his vehicle. After he failed field sobriety tests, defendant was arrested for driving while intoxicated (Vehicle and Traffic Law § 1192). At the scene of the motor vehicle stop, the troopers administered Miranda warnings and chemical test warnings as contemplated in Vehicle and Traffic Law § 1194(2)(f).
The chemical test warnings informed defendant: "You are under arrest for driving while intoxicated. I am going to ask you if you will submit to a chemical test to determine the alcohol and/or drug content of your blood. Before I do, I must advise you that a refusal to submit to a chemical test or any portion thereof will result in the immediate suspension and subsequent revocation of your license or operating privileges, whether or not you are found guilty of the charge for which you were arrested. Your refusal to submit to a chemical test or any portion thereof can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest. Do you understand what I have told you? Will you submit to a chemical test for the purpose of determining the alcohol and/or drug content of your blood?"
Defendant stated that he understood the warnings but wanted to speak to his lawyer before deciding whether to take a chemical test.
Defendant was transported to the state police barracks where he was given chemical test warnings a second time and asked if he was willing to consent to a test. Defendant again indicated that he wished to telephone his attorney. Although he was permitted to use the telephone, defendant was unable to reach his lawyer. A half-hour later, the troopers read the chemical test warnings a third time and sought an answer from defendant concerning whether he would take a chemical test. Defendant responded that he was waiting for his attorney to call him back. At this juncture, the troopers interpreted defendant's response as a refusal to submit to the test and they recorded that refusal on a form pursuant to Vehicle and Traffic Law § 1194(2)(b).
At a pretrial hearing in connection with his driving while intoxicated charge, defendant moved to preclude the People from introducing evidence at trial that he refused to take the chemical test. Defendant asserted that he had never actually declined to be tested but merely requested an opportunity to contact his attorney first, which request was initially granted by the troopers. Because he was never advised that his time to seek a consultation with an attorney had elapsed, defendant maintained that he was unaware that his response to the third request -- that he was waiting to hear back from his lawyer --would be interpreted as a refusal to take the test. He therefore argued that the People should not be permitted to offer evidence that he declined to take a chemical test in order to establish consciousness of guilt.
Town Court denied defendant's motion to preclude, determining that defendant's conduct amounted to a constructive refusal to take a chemical test and, at the subsequent bench trial, the People elicited evidence to that effect. Defendant was acquitted of driving while intoxicated but convicted of the lesser included offense of driving while ability impaired. On appeal, defendant challenged the admission of the refusal evidence at trial but the Appellate Term affirmed the conviction, reasoning that Town Court did not err in concluding that the proof was admissible. A Judge of this Court granted defendant leave to appeal (15 NY3d 895 ) and we now reverse.
Chemical breath tests to determine blood alcohol content (BAC) are an important investigative tool used by law enforcement in the effort to combat driving while intoxicated and related offenses. The administration of these tests is a time-sensitive proposition; to maximize the probative value of BAC evidence, the police endeavor to administer chemical tests as close in time as possible to the motor vehicle infraction, typically within two hours of an arrest.*fn1
The standards governing the administration of chemical
tests to ascertain BAC in this circumstance are set forth in Vehicle
and Traffic Law § 1194. Although there is no constitutional right to
avoid submitting to a chemical test of this nature (see People v Shaw,
72 NY2d 1032 ; People v Thomas, 46 NY2d 100, 108 , appeal
dismissed 444 US 891 ), subsection (2)(b) of that statute grants
a motorist a qualified right to decline to voluntarily take a chemical
test with the understanding that such a decision will have significant
consequences: it will result in the immediate suspension and ultimate
revocation of the motorist's driver's license for one year (Vehicle
and Traffic Law § 1194[d]) and will permit the People to elicit
evidence of such refusal at any subsequent criminal trial (Vehicle and
Traffic Law § 1194[f]).*fn2 However, those
consequences flow from a refusal only if the motorist is first warned,
"in clear and unequivocal language, of the effect
of such refusal" (id.).
To implement the statute, law enforcement authorities have developed a standardized verbal warning of the consequences of refusal to take the test that is given to a motorist suspected of driving under the influence -- the warning that was administered to defendant in this case. The duty to give the warning is triggered if the motorist is asked to take a chemical test and declines to do so. If, after being advised of the effect of such a refusal, the motorist nonetheless withholds consent, the motorist may be subjected to the statutory consequences.
Vehicle and Traffic Law § 1194 does not address whether a motorist has a right to consult with a lawyer prior to determining whether to consent to chemical testing. However, if the motorist is arrested for driving while intoxicated or a related offense, this Court has recognized a limited right to counsel associated with the criminal proceeding. In People v Gursey (22 NY2d 224, 227 ), we held that if a defendant 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, if such access does not interfere unduly with the matter at hand." If such a request is made, and it is feasible for the police to allow defendant to attempt to reach counsel without unduly delaying administration of the chemical test, a defendant should be afforded such an opportunity. As we explained in Gursey, the right to seek the advice of counsel -- typically by telephone --could be accommodated in a matter of minutes and in most circumstances would not substantially interfere with the investigative procedure. That being said, we made clear 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. "If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise," 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 (id. at 229). Where there has been a violation of the limited right to counsel recognized in Gursey, any resulting evidence may be suppressed at the subsequent criminal trial (id.)
Here, defendant does not argue that his limited right to counsel was violated -- nor could he. When defendant expressed a desire to consult with his lawyer, the troopers appropriately permitted him to telephone his attorney, fulfilling the requirements of Gursey. Moreover, the troopers even allowed defendant to wait a half-hour for a return telephone call before they again approached him and asked whether he was willing to consent to a chemical test.
Thus, although this case involves a request to speak to counsel, the issue here is not whether defendant's Gursey right was violated but, rather, whether proof that he refused a chemical test was properly admitted against him at trial. Under Vehicle and Traffic Law § 1194(2)(f), evidence that a defendant declined to take a chemical test is admissible provided that defendant was clearly and unequivocally informed that this would be one of the ramifications of refusal. The proof is received to permit the inference of consciousness of guilt, ie., "that defendant refused to take the test because of his apprehension as to whether he would pass it" (Thomas, 46 NY2d at 106). The admission of this type of evidence does not implicate a defendant's right against self-incrimination because there is no compulsion to refuse to take the test; to the contrary, as was ...