Monday, January 02, 2006

Nassau District Court Says If You Can't Get Consent To Take A Blood Test Within Two Hours Of Arrest... Change The Time Of Arrest

I guess the good news is that: the Nassau County District Court in People v. Steffens acknowledged that the Two Hour rule means that the prosecution can only use a blood alcohol test taken more than after arrest if the defendant consents to taking the test. See our recent post on the "Two hour rule."

The bad news is that the court has undone years of jurisprudence that define when someone is under arrest, in order to save the blood test and justify the arrest made by a police officer, that the court acknowledged was not candid (lied?) in his testimony.

In Steffens a Nassau County NY Police officer on routine patrol, comes across a driver who has decided to sleep off a night of drinking on the side of a road. It is 3am and snowing. An inch of snow is already on the ground. The officer, notices the car has a tire up on the curb and that the driver is slumped over the steering wheel. It appears the car skidded in the snow prior to coming to a halt. The car was not running, but of course the keys were in the ignition.

The officer, who claimed he stopped to see if he could render assistance, calls for a backup and waits until it arrives before he wakes the driver. (Maybe it's just cynicism on my part but if it were an emergency, should you wait that long? Or was that "assistance" thing just a ruse for why you stopped and intruded upon an otherwise "innocent" citizen? But I digress.) Of course the car had a strong odor of alcoholic beverage emanating from it. The officer asks the driver out of the vehicle and has him take part in a field sobriety test(including the often criticized Horizontal Gaze Nystagmus)test which by all accounts the driver fails.

Even before the officer administers a road side sobriety test, (which most Long Island defense lawyers call a balloon test or PBT {portable breath test])the court finds the driver to be "under arrest" and suppresses a statement the driver makes about coming from a bar. (The court actually found that the police officer who asked the driver "how he got there" had been deliberately imprecise as to when in the investigation he asked the question). The officer claims to have placed the driver under arrest at about 3:30am. The court finds that the driver was not free to leave even before the PBT was administered sometime around 3:15am. After putting the defendant into his Patrol car for transport to the Central Testing Unit, the defendant complains of chest pains and appears to pass out. Instead of heading to CTU they take the defendant to a local hospital. The officer or his back-up now called for a "blood kit" to be brought to the hospital. It arrived at about 4am. The defendant's doctor refused to sign off on the medical clearance and refused to draw the blood. A nurse did agree to draw the blood. However, by the time they sorted it all out, the blood didn't get drawn until 5:17am arguable more than two hours after the defendant was found to be in custody at least for the purposes of Miranda warnings.

Ok so far it appears that the blood test should be precluded. But of course when it's a DWI it seems the rules change. Without any supporting case law, the court posits that:

"That Defendant was in custody for Miranda purposes does not, however, also mean he had been "placed under arrest" within the meaning of Vehicle and Traffic Law § 1194(2)(a)(1), a subsection of a statute that, like Vehicle and Traffic Law § 1194(2)(a)(2), sets forth a purportedly bright-line "two-hour" standard for determining the admissibility of the results of a chemical test of the breath or blood of someone whom police suspect or have reasonable cause to believe has violated Vehicle and Traffic Law § 1192."

Nevermind that not a single higher court has ever found that the time of arrest and the time of custody are not the same thing for the purposes of calculating VTL 1194(2)(a)(1). Nor do either leading NY Hornbook on DWI (Pete Gerstenzang's: "Handling the DWI Case in NY" Thomson-West Publishing and Ed Findach's: "Handling Drunk Driving Cases 2d" Thomson-West)distinguish a difference in the standards for determining when one is "under arrest".

The Judge in Steffans then decides that the clock begins when a "formal" arrest is made (ie. when the cuffs went on.) Without nary a bit of legitimate evidence as to what time that is, she "guesstimates" that fifteen minutes had to have elapsed from the time of the stop until the time of the de facto custody suppressing the statement. She then throws out two more minutes because..." it is likely that it took two more minutes for the formalities and to get Defendant in handcuffs..." (funny when they cuff them on TV it always takes what, three seconds?)

In one fell swope this judge does away with the issue of whether the statue was complied with, using only conjecture and a judicial fiat. Of course it didn't help that the judge also felt that the reason it took till 5:17am to draw the blood was that the emergency room doctor would not cooperate with the police.

In order for the court to reach the decision it does, it must also ignore the clear language of the statute that says in relevent part that the compulsory test must take place "(2)within two hours after a breath test, as provided in Paragraph (b) of subdivision one of this section (a PBT),indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which the officer is a member."

In the Steffens case the court found the defendant was in custody before the PBT was taken. It also found that the testifing officer was intentionally vauge in his timing of events and that he was at best poor at keeping proper documentation, Nevertheless she credits his arrest by deciding that the PBT was not the correct time to begin the clock but that it only happens not at the time of actual custody but at the time the police officer "formally arrests" the defendant. Hence, despite the lying of the police and their admitted failure to follow procedures and law, the court finds a nonexistentant rule to keep the proscution alive.

It is clear that many judges in this state (most of whom face re-election every few years) do not like the two hour rule. I am sure that they fear invoking the wrath of organized prohibitonists (MADD) or looking weak on the charge of DWI. No one wants to have drunk drivers on the streets, even defense attorneys, but failing to uphold the law and keeping a check on police just exacerbates the problem. It makes it possible for innocent people to be ramrodded through a system without protection. Whether Steffens is innocent is not the issue. The way this judge misinterprets the law to "get" him will someday be the same law that is used to "get" an innocent person. That is why it is so important to get the cases of the guilty right.

Given that a person accused of DWI loses his right to drive upon arraignment, has his car confiscated upon arrest, and therefore will often lose his job unless he can get back on the road right away, not to mention face exorbitantant legal bills for both criminal and civil defense, there is a very high plea rate in these cases. Hence there is little chance police activity is going to be reviewed. In the few cases their behavior is reviewed it is very important to hold them to their responsibilities otherwise there is almost no downside to their inability to follow what seem to be very simple rules. If there is no check on their power... well, it is said that absolute power corrupts absolutely.

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