DWI Refusal Precluded:Court Rules that Two Hours Rule Applies to Refusals

Our office has had a victory precluding the prosecution from using a client's refusal to submit to a breath test offered him over two hours after he was arrested for Driving While Intoxicated.

The decision in People v. Cavaliere, Docket No. 3906C/04 Bronx County Marcus J. (December 14,2005), deals with whether or not the prosecution can use a DWI defendant's refusal to take a breath test when such test is offered to the suspect over two hours after the arrest.

In the Cavaliere case, the defendant was arrested after being involved in a multi-car accident on the Bruckner Expressway in the Bronx. The police claim to have smelled a strong odor of alcohol on the defendant's breath and witnesses claim that the defendant appeared intoxicated after the accident. The breath test was offered to the defendant well over two hours after the defendant was arrested.

The defendant moved to preclude the test refusal based on the NYPD's violation of VTL Sec. 1194(2)(a)(1,)in that the test was not offered to the defendant until after two hours from the time of the defendants arrest. See People v. Brol, 81 AD2d 739 (4th Dept. 1981). The prosecution argued that Brol was overruled by the Court of Appeals in People v. Atkins, 85 NY2sd 826(1995). It was the defendant's contention that Atkins is mistakenly described as holding that the "two hour rule" was no longer applicable in its entirety.

The court ruled that the breath test was not offered with in two hours and thus the refusal should be precluded. The People made a motion to reargue. Again arguing that the Brol case was overruled by Atkins the People filed an exhaustive brief discussing the history of the ill fated "two hour rule." It urged the court should join other lower courts in finding that the "two hour rule" no longer a precluded a test refusal from coming into evidence after an offer of a test post two hours from arrest. The Defense argued that such a rule would subject a defendant to a refusal if he was offered the test anytime after arrest and allow the prosecution to argue the test was refused because of a consienceness of guilt.

The Court in its decision again ruled the refusal precluded as outside the
strictures of VTL Sec. 1194(2)(a)(1). The court held that Atkins only permitted the use of a breath test taken more than two hours after the arrest when the defendant consented to taking the test more than two hours after the arrest. The court held here however that Atkins does not hold that evidence of a REFUSAL obtained more than two hours after arrest is admissible at trial. By holding that the test results obtained by consent are admissible the Court of Appeals did not announce new law or imply that the "Two Hour Rule" was no longer viable. Atkins only holds that tests consented to after two hours from arrest are admissible and that does not mean that refusals are admissible.

This win should be credited to John J. Marshall Jr. who won the original motion and Amy Hsu who wrote the major part of the response to People's motion to reargue both on behalf of The Law Offices of Anthony J. Colleluori & Associates LLC.