The People, Appellant,v.Donald Odum, Respondent.

Brief

N.Y.March 27, 2018

To be Argued by: V. MARIKA MEIS (Time Requested: 20 Minutes) APL-2017-00128 Bronx County Clerk’s Docket No. 2014BX056060 Court of Appeals of the State of New York   THE PEOPLE OF THE STATE OF NEW YORK, Appellant, – against – DONALD ODUM, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT THE BRONX DEFENDERS Attorneys for Defendant-Respondent 360 East 161st Street Bronx, New York 10451 Tel.: (718) 838-7846 Fax: (718) 665-0100 Date Submitted: September 28, 2017 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................. 1 QUESTION PRESENTED .......................................................................... 2 STATEMENT OF FACTS AND PROCEDURAL HISTORY A. The Criminal Complaint and Arrest .................................................. 2 B. The Pre-trial Suppression Hearing .................................................... 4 C. Arguments at the Close of the Hearing ............................................. 5 D. The Court’s Decision and Order Granting Suppression .................... 6 E. Motion to Reargue and Opposition ................................................... 7 F. The Criminal Court’s Decision and Order Denying Re-argument ... 8 G. Appellate Term, First Department ..................................................... 8 SUMMARY OF ARGUMENT ................................................................... 10 ARGUMENT POINT NEITHER MR. ODUM’S INITIAL ‘REFUSAL’ TO TAKE A BREATHALYZER TEST NOR HIS SUBSEQUENT INVOLUNTARY ‘CONSENT’ WERE ADMISSIBLE AT TRIAL BECAUSE THE TWO-HOUR PERIOD OF ‘DEEMED CONSENT’ EXPIRED, MAKING THE ‘REFUSAL’ A LEGAL NULLITY AND THE ‘WARNINGS’ FALSE AND MISLEADING AND THEREFORE INHERENTLY COERCIVE ........................................... 13 A. The Applicable Law .......................................................................... 13 1. A breathalyzer examination is a ‘search’ .................................... 13 2. The Vehicle and Traffic Law “deemed consent” provision ....... 15 ii 3. Although the lower courts are divided, the First Department and the Bronx County Criminal Courts, where this arrest occurred, strictly interpret the “deemed consent” provision and suppress refusals made after two hours ............................... 21 B. This Law, As Applied to Mr. Odum’s Case, Renders The First Refusal ‘Warning’ Misleading, and any ‘Consent’ Based on it Invalid; The Breathalyzer Results, Therefore, Were Properly Suppressed ......................................................................................... 27 C. The Warning Concerning License Suspension And Revocation Also Was False, Misleading and Coercive ........................................ 30 CONCLUSION ............................................................................................ 33 iii TABLE OF AUTHORITIES Page(s) Cases: Bumper v. North Carolina, 391 U.S. 543 (1968) ................................................................................. 14 Mapp v. Ohio, 367 U.S. 643 (1961) ................................................................................. 13 People v. Atkins, 85 N.Y.2d 1007 (1995) ............................................................................. passim People v. Caceres, Docket 2012BX069848 (Michels, J.) (Crim. Ct. Bronx Co. June 9, 2014)............................................................................................. 26 People v. Corbin, 201 A.D.2d 359 (1st Dept. 1994) ............................................................. 13 People v. D.R., 23 Misc. 3d 605 (Sup. Ct., Bronx Co. 2009) ............................................ 27 People v. Finnegan, 85 NY.2.d 53 (1995) ................................................................................. 23n.15 People v. Gonzalez, 39 N.Y.2d 122 (1976) ............................................................................... 14 People v. Graziuso, 23 Misc.3d 1138(A) (Crim. Ct., Richmond Co. 2009) ............................ 23-24 People v. Holbrook, 20 Misc. 3d 920 (Sup. Co., Bronx Co. 2008) ........................................... 25n.17 People v. Jermaine Robinson, Docket 2011BX065411 (Adler, J.) (Crim. Ct. Bronx Co. June 27, 2016) .......................................................................................... 26 People v. Johnson, 134 Misc. 2d 474 (Crim. Ct., Queens Co. 1987) ...................................... 13 iv People v. Kates, 53 N.Y.2d 591 (1981) ............................................................................... 16 People v. Kenny, 9 Misc.3d 1104(A) (Crim. Ct., Richmond Co. 2005) .............................. 23 People v. Morris, 8 Misc.3d 360 (Crim. Ct., Richmond Co. 2005) ...................................... 23 People v. O’Connor, 290 A.D.2d 519 (2d Dept. 2002) .............................................................. 25n.17 People v. Robinson, 82 A.D.3d 1269 (2d Dep’t 2011) ....................................................... 6n.6, 22, 29 People v. Rodriguez, 26 Misc.3d 238 (Sup. Ct. Bronx Co. 2009) .............................................. 22 People v. Rosa, 112 A.D.3d 551 (1st Dept. 2013) ............................................................. passim People v. Stratton, 286 A.D. 323 (3d Dept. 1955), affirmed, 1 N.Y.2d 664 (1956) ............... 18n.11 People v. Suriel, Dkt 2013BX057763 (Whiten, J.) (Crim. Ct. Bronx Co. May 5, 2015)............................................................................................. 26 People v. Vargas, Docket 2014BX012928 (Michels, J.) (Crim. Ct. Bronx Co. January 28, 2015) ..................................................................................... 26 People v. Victory, 166 Misc. 2d 549 (Crim. Ct., Kings Co. 1995) ........................................ 25n.17 People v. Ward, 176 Misc. 2d 398 (Sup. Ct., Richmond Co. 1998) ........................... 21-22, 23, 30 People v. Whitehurst, 25 N.Y.2d 389 (1969) ............................................................................... 14 v United States Constitution: Amend. IV .................................................................................................... 10 Amend. IV, Article 1 .................................................................................... 13 New York State Constitution: Article 1, § 12 ............................................................................................... 10, 13 Statutes and Rules: C.P.L. § 470.05 ............................................................................................ 28n.18 C.P.L. § 470.05(2) ........................................................................................ 9n.7 C.P.L.R. § 7803(3) ....................................................................................... 31n.21 P.L. § 120.20 ................................................................................................ 2 Rules of Practice 500.13(a) .......................................................................... 9n.7 V.T.L. § 71-a ................................................................................................ 15 V.T.L. § 1192 ............................................................................................... 28 V.T.L. § 1192(2) .......................................................................................... 2 V.T.L. § 1194 ............................................................................................... passim V.T.L. § 1194(2) ....................................................................... 2, 10, 23, 23n.15, 28 V.T.L. § 1194(2)(a) ....................................................................... 14, 15, 18, 22, 27 V.T.L. § 1194(2)(a)(1) ............................................................................. 19, 23n.15 V.T.L. § 1194(2)(b)(1) ................................................................................. 19 V.T.L. § 1194(2)(b)(2) ................................................................................. 19 V.T.L. § 1194(2)(b)(3) ................................................................................. 20 V.T.L. § 1194(2)(c) ............................................................................ 20, 20n.12, 31 V.T.L. § 1194(2)(d)(1) ................................................................................. 20 vi V.T.L. § 1194(2)(d)(2) ................................................................................. 20 V.T.L. § 1194(2)(f) .................................................................... 3n.3, 18, 21, 22, 30 V.T.L. § 1194(3) ................................................................................. 19, 21, 22, 23 V.T.L. § 1194(4) ................................................................................ 22, 23, 23n.15 V.T.L. § 1212 ............................................................................................... 2 Other Authority: C.J.I. Criminal for V.T.L. § 1192(3) ............................................................ 21n.13 King and Tipperman, The Offense of Driving While Intoxicated: The Development of Statutory and Case Law in New York, 3 Hofstra L. Rev. 541 (1975) available at http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1 087&context=hlr ........................................................................ 16, 17, 18, 18n.11 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DONALD ODUM, Defendant-Respondent. ---------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of this Court (Fahey, J.), granted June 13, 2017, the prosecution has appealed from an order of the Appellate Term, First Department, entered December 30, 2016. That order affirmed a judgment of the Criminal Court, Bronx County (Whiten, J.), rendered June 30, 2015, which adopted the findings and conclusions of J.H.O David Stadtmauer issued on June 19, 2015, granting defendant-respondent Donald Odum’s motion to suppress his initial refusal and subsequent breathalyzer test results as not being the product of knowing and voluntary consent where both the refusal and breathalyzer test occurred more than two hours after his arrest and where the breathalyzer test followed the administration of “refusal” warnings. The prosecution also appeals from a December 3, 2015 decision denying prosecution’s motion to reargue that decision. 2 Mr. Odum was represented by The Bronx Defenders as counsel below and The Bronx Defenders remain as counsel in this appeal. QUESTION PRESENTED Whether the trial court properly suppressed both an initial refusal to submit to a breathalyzer examination and subsequent breathalyzer test result where Mr. Odum’s initial refusal occurred after the two-hour “deemed consent” period for breathalyzer exams to be taken, and his subsequent “consent” solely was premised on the officer’s false and misleading warnings that Mr. Odum’s refusal would result in license suspension and be used against him in court when in fact neither consequence could have occurred because the test was administered more than two hours after Mr. Odum’s arrest, and therefore any refusal could not have been held against Mr. Odum under V.T.L § 1194(2); People v. Atkins, 85 N.Y.2d 1007 (1995); and People v. Rosa, 112 A.D.3d 551 (1st Dept. 2013). STATEMENT OF FACTS AND PROCEDURAL HISTORY A. The Criminal Complaint and Arrest Mr. Odum was charged by criminal complaint with Reckless Endangerment in the Second Degree, P.L. § 120.20; Reckless Driving, V.T.L. § 1212; Operating a Motor Vehicle While Under the Influence of Alcohol, V.T.L. § 1192(2); and related charges. A. 5-6 (criminal complaint).1 He was placed under arrest for 1 Citations to “A” refer to Appellant’s Appendix. 3 suspicion of these charges at 3:12 a.m. and taken by NYPD officers to the 45th Precinct’s Intoxicated Driver Testing Unit (“IDTU”). A. 100 (testimony of Officer Cobo). On the video,2 IDTU technician, Officer Delacruz, engages in the following dialogue with Mr. Odum: Officer: The time is now 5:50 … You have been arrested for operating a motor vehicle while under the influence of alcohol or drugs. We would like for you to take a breath test. Will you take this test? Yes or no? Odum: No. Officer: Alright, the subject stated no … If you refuse to submit to the test or any portion thereof, it will result in the immediate suspension or subsequent revocation of your driver’s license or operating privileges whether or not you are found guilty of the charges for which you have been arrested. In addition, if you refuse to submit to the test or any portion thereof, it will be introduced as evidence against you in any trial proceeding resulting from the arrest.3 2 A copy of the IDTU video was provided with Appellant’s Brief. See Appellant’s Brief at 7, n.3. 3 Pursuant to V.T.L. § 1194, the “refusal warnings” to be administered by law enforcement are as follows: 1. 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 privilege, whether or not you are convicted of the charge for which you are arrested; and 2. If you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest. V.T.L. § 1194(2)(f)(emphasis added). 4 Odum: I’ll take it. Officer: I’m going to ask you again: Do you want to take this test? Odum: I’ll take it. Officer: Yes or no. Odum: Yes. Mr. Odum then performed the breathalyzer test and Officer Delacruz announces that the result as a “.09,” just .01 over the legal limit of .08. See IDTU video. B. The Pre-trial Suppression Hearing Following motion practice, on May 28, 2015, and June 3, 2015, the Honorable David Stadtmauer, a Judicial Hearing Officer of the Bronx Criminal Court conducted a combined Huntley/Dunaway/Johnson/Mapp/Ayala hearing. A. 25-144 (hearing minutes May 28, 2015). The prosecution’s case consisted of the arresting officer, Erica Cobo, who testified concerning her arrest of Mr. Odum for suspicion of DWI. A. 31-48. The prosecution entered the IDTU video entered into evidence4 and played it for the court. A. 51. 4 The evidence produced by the prosecution during the pre-trial hearing consisted solely of Officer Cobo’s testimony and the IDTU video. 5 C. Arguments at the Close of the Hearing Defense counsel orally argued, as well as submitting a post hearing memorandum of law5, that pursuant to People v. Rosa, 112 A.D.3 551, 552 (1st Dept. 2013), the refusal warnings given here, well over two hours after Mr. Odum’s arrest, were coercive in nature because they erroneously advised Mr. Odum that his refusal would result in suspension of his driver’s license and would be used against him at trial. A. 11-15 (Minutes from June 3, 2015). As such, counsel argued, both Mr. Odum’s initial refusal and subsequent breath test result should be suppressed. Id. The prosecution argued that “the crux of [the Rosa] analysis was based on the fact that the defendant was told that his license would be suspended” and proposed that the Rosa court’s reasoning would have been different had the 2012 DMV Counsel Memorandum [herein “DMV Memo”] addressing the “two-hour rule” and license suspensions been issued before 2009, when the improper warnings in Rosa were given, as refusals outside the two-hour rule following the DMV Memo do result in license suspensions. A. 135-37. At no point did the prosecutor address whether the police could in fact “follow through” with the “threat” that the refusal would be used against Mr. Odum in a resulting criminal court proceeding, nor why his position was that the “crux” of the Rosa analysis 5 A.150-55 (Mr. Odum’s written submission). 6 turned solely on the suspension warning and not the second warning concerning criminal proceedings. The prosecutor never once touched upon the issue of Mr. Odum’s initial refusal and focused solely on the breathalyzer test result. D. The Court’s Decision and Order Granting Suppression On July 22, 2015, J.H.O. Stadtmauer issued a written Decision and Order adopted by The Honorable Marc J. Whiten. A. 145 (adoption by Judge Whiten); A. 146-49 (Stadtmauer Decision & Order). In that Decision and Order, J.H.O. Stadtmauer suppressed both Mr. Odum’s initial refusal and his later breathalyzer test result, relying on the language of Rosa. Specifically, the court held that In light of the uncontradicted evidence that the refusal occurred more than two hours after arrest, suppression of the refusal is warranted. See People v. Rosa, 112 A.D.3d 551 (1st dept, Dec 31, 2013)[sic]. This in contrast to the second dept holding to the…holding in People v. Rodriguez, 26 Misc.3d 238 (March, 2011).6 * * * * * * * * * * * * * * * * * * * * * * * * * * * Deft[sic] also urges that the court grant suppression as to the results of the breath test claiming that deft’s [sic] agreement to take the test resulted from the coercive warnings given after the initial refusal. The court is constrained to agree. The language of the App Div [sic] in People v. Rosa, supra, is clear and unequivocal that the warnings given by the police were coercive. The 6 Appellant is correct that it does appear the lower court provided an incorrect citation here and is, instead, referring to People v. Robinson, 82 A.D.3d 1269 (2d Dep’t 2011). See Appellant’s Brief at 10, n.7. 7 implication that, absent the warnings, the court must assume that the deft [sic] would not have finally agreed to the test. A.148. E. Motion to Reargue and Opposition On September 2, 2015, the prosecution filed a “Motion for Leave to Reargue.” A. 156-79 (Motion and Exhibits). In it, the prosecution argued that the breath results should not have been suppressed, but did not challenge the court’s suppression of the initial refusal. In support of its argument that the breath results should be admitted, the prosecution argued that the court overlooked the controlling authority of Atkins, and misapplied the holding of Rosa because the language in Rosa referencing the two-hour limit was mere dicta. A. 163-64. On October 23, 2015, Mr. Odum responded, urging the court to deny the People’s motion to reargue on the ground that the prosecution had failed to make a sufficient showing that the court had overlooked or misapprehended any facts or any controlling principle of law. A. 180-207 (Response and Exhibits). Further, Mr. Odum pointed out that the prosecution did not contest the court’s ruling that Mr. Odum’s “consent” to the test was involuntary. Instead, Mr. Odum observed, the prosecution limited its argument to the application of the “two-hour rule” in light of the 2012 DMV Memo. A. 186-87. Mr. Odum supported his argument with controlling Apppellate Division and Court of Appeals authority, see A. 183-85 8 (citing Rosa, supra, and Atkins, supra) as well as unpublished descisions from the Bronx County Supreme and Criminal Courts suppressing refusals after two hours. A. 189-207 (Exhibits). F. The Criminal Court’s Decision and Order Denying Re-argument On December 3, 2015, the Honorable Judge Whiten issued a Decision and Order denying the People’s Motion to Reargue. A. 208-12 (December 3, 2015 Decision and Order). The court held that the language referencing the “two-hour rule” in Rosa was not dicta and that It is well settled that the chemical test results are admissible upon a showing that the accused driver expressly and voluntarily consented to the chemical test. However, where, as herein, there is a question about the voluntariness of the consent, the People bare the initial burden at the suppression hearing to show that…the consent given by the defendant was expressly and voluntarily given, a burden that the People failed to meet. A. 211. G. Appellate Term, First Department The prosecution appealed both the underlying decision and order granting suppression and the court’s subsequent denial of re-argument to the Appellate Term, First Department. In a decision and order entered December 30, 2016, the Appellate Term, First Department affirmed the lower court’s suppression of both the initial refusal 9 and subsequent breathalyzer test result. The Appellate Term held, “‘Because more than two hours had passed since defendant’s arrest, the officer who administered the breathalyzer test should not have advised defendant if he refused to take the test, his driver's license would be suspended and the refusal could be used against him in court.’” A. 3-4 (Appellate Term Decision). The Appellate Term further held that, “Inasmuch as defendant agreed to take the test only after the officer gave the ‘inappropriate warnings’ [citing Rosa, 112 A.D.3d at 552], the court properly found that defendant's consent was involuntary.” A. 4. The prosecution subsequently sought leave from this Court, which this Court granted. Appellant now challenges in this Court only that much of the Appellate Term Decision that upheld suppression of the breathalyzer results (not the initial refusal). See Appellant’s Brief, p. 2.7 7 Appellant claims both the issue of whether the refusal warnings issued after two hours vitiates voluntary consent and whether a “refusal” made after two hours is admissible are preserved, see Appellant’s Brief at 30-31, but fails to provide citations to the Appendix demonstrating preservation of the refusal issue or a statement, required by Rule 500.13(a) of the Rules of Practice for this Court, showing this Court had jurisdiction. As to the refusal, Appellant relies on the fact that the JHO below noted a split in the First and Second Departments as preserving the issue, see Appellant’s Brief at 31 (citing C.P.L. § 470.05(2)). Section 470.05(2) provides that a question of law is preserved by a protest registering a protest thereto. Yet, as noted in the facts section here, the prosecution did not challenge suppression of the refusal in post-hearing arguments or the motion to reargue below. As such, Appellant failed to properly preserve a challenge to suppression of the refusal. Nor does Appellant make any arguments in its brief to this Court as to why a “refusal” after two hours is admissible and focuses instead on the admissibility of the breathalyzer test results. 10 SUMMARY OF ARGUMENT A breathalyzer test, like any other “search” of a “person” cannot be performed absent “probable cause” and a “warrant.” U.S. Const. Amend. IV; N.Y. Const. Art. 1, § 12. Although “consent” is a recognized exception to the warrant requirement, the prosecution must prove consent by clear and convincing evidence. Where the prosecution seeks to admit a warrantless chemical test result on the basis of “consent,” the prosecution must prove that the consent was knowing and voluntary and not the product of coercion. “Consent” cannot be “knowing and voluntary” where it is given based on false and misleading threats, or “warnings,” from law enforcement. The “warnings” given in this case—(1) that the refusal will result in license suspension/revocation and (2) that the refusal will be used in criminal proceeding—were false and misleading. Nevertheless, law enforcement issued them to Mr. Odum secure his “consent” to a breathalyzer test. The prosecution in this case argues that the warnings were properly administered, and therefore the consent was valid. To accept this argument, this Court would have to override the Legislature’s creation of the two-hour period of deemed consent codified in V.T.L. § 1194(2). The “two hour rule” is a Legislatively created quasi-exception to the warrant requirement, to be applied solely in DWI investigations to permit a period of “deemed consent” for a motorist to submit to a chemical test. 11 Taking into consideration that driving in New York State is a privilege, the Legislature created a period of “deemed consent” during which a motorist is presumed to have given consent to submit to a chemical test for suspicion of DWI. But the Legislature later placed a limitation on that period of deemed consent by adding a time frame of two hours after an arrest for DWI. Within these two hours, a driver’s unwillingness to take a chemical test became admissible as a “refusal” so long as the motorist persists in refusing and proper warnings of the consequences are given to the person accused of DWI. The admissibility of the refusal is used as consciousness of guilt evidence because a motorist is choosing to revoke consent to take a chemical test. After the expiration of two hours and the end of the period of deemed consent, the statutory exception to the warrant requirement no longer applies and a motorist’s license or privilege to drive no longer includes a presumed consent to take a chemical test. A driver then has the choice of whether or not to take the test, just as any individual accused of a crime has a choice whether to submit to a search by law enforcement targeted at gathering evidence to be used in the prosecution of a crime. Thus, any “refusal” to take a test after two hours is not a “refusal” within the meaning of V.T.L.; it is merely the exercise of a right to be free from bodily intrusions by law enforcement. As such, a person’s decision not to take the test is not admissible in a prosecution for DWI, just as a suspect’s decision not to consent 12 to the search of their person or property or the decision not to speak to the police is not admissible in a criminal trial. It follows that the refusal “warnings” are proper and even required during the two-hour period of deemed consent, because, in that scenario a “refusal” is admissible evidence. However, once that period has expired and a driver in not required to submit to a chemical test, a decision not to submit is not a “refusal” and is not admissible in a criminal proceeding making the refusal “warning” administered inherently false and misleading. The interplay between the V.T.L.’s “deemed consent” period and the warrant requirement exists separate and apart from any mere regulations of the Department of Motor Vehicles (herein “DMV”). Therefore, even if Appellant is correct that a 2012 memorandum issued by the DMV (herein “DMV Memo”) allows for license suspensions and revocations after the expiration of two hours, this does not impact the admissibility of either a refusal or a coerced consent to a breathalyzer test at a criminal trial. As such, both the refusal and breathalyzer test results were properly suppressed due to the issuance of improper refusal warnings. 13 ARGUMENT POINT NEITHER MR. ODUM’S INITIAL ‘REFUSAL’ TO TAKE A BREATHALYZER TEST NOR HIS SUBSEQUENT INVOLUNTARY ‘CONSENT’ WERE ADMISSIBLE AT TRIAL BECAUSE THE TWO-HOUR PERIOD OF ‘DEEMED CONSENT’ EXPIRED, MAKING THE ‘REFUSAL’ A LEGAL NULLITY AND THE ‘WARNINGS’ FALSE AND MISLEADING AND THEREFORE INHERENTLY COERCIVE A. The Applicable Law 1. A breathalyzer examination is a ‘search’ The administration of a breathalyzer test by police is a search by a government agent, the legality of which must be analyzed under traditional constitutional analysis. See U.S. Constitution, Amend. 4, Article 1, § 12 NY Constitution; Mapp v. Ohio, 367 U.S. 643, 660 (1961); People v. Johnson, 134 Misc. 2d 474, 476 (Crim. Ct., Queens Co. 1987). The purpose of a Mapp/Johnson hearing is for the court to determine whether or not the prosecution’s evidence, including the breathalyzer test results, was obtained by the police in a legal manner. See Johnson, 134 Misc. 2d at 476. While consent is a recognized exception to the warrant requirement, the prosecution must prove consent with “clear and convincing” evidence. See People v. Corbin, 201 A.D.2d 359, 359 (1st Dept. 1994). “When a search and seizure is 14 based upon consent . . . the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right.” See People v. Whitehurst, 25 N.Y.2d 389, 391 (1969). “Official coercion, even if deviously subtle, nullifies apparent consent.” People v. Gonzalez, 39 N.Y.2d 122, 124 (1976). Consent to submit to a breath test – like consent to submit to any search – must be a truly free and unconstrained choice to be considered voluntary. See People v Atkins, 85 N.Y.2d 1007, 1009 (1995). Where “consent” is obtained through threats – particularly false or misleading threats – it is not truly free and unconstrained. See Bumper v. North Carolina, 391 U.S. 543 (1968). In Bumper, the defendant “consented” to the search of his home only after the police officer falsely told the defendant that he possessed a warrant. Id. at 548. That warrant, however, was invalid at the time the search was conducted. Id. The Supreme Court reasoned that the consent was not voluntary because law enforcement’s misstatement of their authority was inherently coercive. Id. at 549. Similarly, a test given outside the deemed consent period may be “voluntary,” see Atkins, but not if such voluntariness is premised on law enforcement’s misleading “warning” that the defendant would be punished if he refused, see Rosa, supra. In seeking to admit a breathalyzer test result as being consensual, the prosecution can meet its burden by proving either (1) that the “deemed consent” provision in Vehicle and Traffic Law § 1194(2)(a) applies, meaning that the 15 defendant was required to submit to the test within two hours of being arrested8, or (2) if the test was administered outside of the two-hour period, that the defendant both expressly and voluntarily consented to take the test. See Atkins, 85 N.Y.2d at 1009. The burden is on the prosecution to establish that such an express and voluntary consent was made. 2. The Vehicle and Traffic Law “deemed consent” provision To drive in New York State, a motorist must agree to surrender a small portion of his or her fundamental rights: the right not to be compelled to submit to a search of his or her person via a chemical test for two hours after being arrested for suspicion of DWI. See V.T.L. § 1194(2)(a). The Legislature created this narrow exception in recognition of the dangers of drinking and driving and emphasizing that driving is a privilege and not a right. Under this statutory scheme, motorists are deemed to have consented to chemical tests of their blood alcohol content (herein “BAC”) and are subject to civil penalties for refusing to submit to such tests. The Legislature first introduced the concept of deemed consent into the Vehicle and Traffic Law in 1953 as section 71-a which provided that motorists were “deemed to have given consent” to chemical tests, but that, in order to avoid the perils of trying to force intoxicated drivers to comply, a motorist could refuse 8 Or within two hours of a positive field breath test result, which is not applicable here. 16 to submit to a chemical test, and if he did, the Commissioner “shall revoke his license or permit to drive[.]” Atkins, 85 N.Y.2d at 1008 & n.1; King and Tipperman, The Offense of Driving While Intoxicated: The Development of Statutory and Case Law in New York, 3 Hofstra L. Rev. 541, 550 (1975) (quoting and discussing ch. 854, § 1, [1953] Laws of N.Y. 1876) (herein “King and Tipperman”).9 Along with deemed consent came the concept of refusal and the consequences of refusing. As explained by this Court: It was reasonable for the Legislature, concerned with avoiding potentially violent conflicts between the police and drivers arrested for intoxication, to provide that the police must request the driver’s consent, advise him of the consequences of refusal and honor his wishes if he decides to refuse. People v. Kates, 53 N.Y.2d 591, 596 (1981); see also Atkins, 85 N.Y.2d at 1010-11 (Simons, J., dissenting) 10 At its inception, the deemed consent provision did not include a two-hour limitation. 9 available at http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1087&context=hlr. 10 Stating as follows: Through the concept of deemed consent, whereby every person operating a motor vehicle on the State’s highways was deemed to have thereby given consent to a blood test at the direction of law enforcement (see, Vehicle and Traffic Law former § 71–a; current Vehicle and Traffic Law § 1194), all testing was effectively rendered “voluntary,” or at least consensual. The Legislature recognized, however, that some drivers, particularly when their faculties were impaired by alcohol, might physically resist the taking of a blood sample. If law enforcement officials were required to employ physical force to obtain the blood sample 17 The deemed consent provision quickly faced due process challenges, however, and the Legislature amended the statute to add additional protections for motorists, such as the right to a due process hearing prior to revocation of a license. See King and Tipperman at 552-54. In 1959, the Legislature re-codified the driving while intoxicated provisions of the V.T.L., and moved the deemed consent law to section 1194, its current section. Id. at 559-62 (discussing ch. 775, § 1194, [1959] Laws of N.Y. 2008-09). For more than a decade, the Legislature continued to add procedural protections to the deemed consent provision, including the requirement that motorists be informed of the consequences of refusing to take a chemical test before they are deemed to have refused and the requirement that the police officer forward a copy of the refusal paperwork to the DMV Commissioner. Id. at 573-80. Significantly, the Legislature also added a two-hour window to the deemed consent provision, so that a motorist was deemed to have consented to a chemical test only within two hours of his arrest or two hours of a preliminary breath test. in those circumstances, the test results would be the product of coercion and would no longer satisfy the demands of due process. In order to obviate the need for physical force, the deemed consent amendment provides the driver with an opportunity to affirmatively withdraw that consent, upon being informed of the consequences of that withdrawal, i.e., suspension of driving privileges and admission of the driver's refusal to take the test at trial (see, Interim Report of Joint Legis Comm on Motor Vehicle Problems, 1953 McKinney’s Session Laws of N.Y., at 1912– 1928). By this means the statute created, in effect, a constitutionally legitimate device for extracting submission to the test from an otherwise reluctant driver. 18 See V.T.L. § 1194(2)(a); Atkins, 85 N.Y.2d at 1010 (Simons, J., dissenting) (“In 1941, the Legislature amended former section 70(5) of the Vehicle and Traffic Law to allow, for the first time, the admission at trial of the results of a chemical test for blood alcohol, provided that the test had been administered within two hours of arrest” and “the 1970 amendment [] brought the two-hour limit and the deemed consent provisions into one statutory section . . .”) The Legislature also added a provision making the results of a refusal admissible. 11 See King and Tipperman at 587 (citing N.Y. Veh. & Traf. Law § 1194(2) (McKinney Supp. 1974)). This amendment did not alter the structure of the statutory scheme developed over decades providing for deemed consent to chemical tests, the “right” of refusal, the sanctions following refusal, or the due process hearing before sanctions could be imposed. Rather, the new evidence section was added to the end of V.T.L. § 1194(2) as subsection (f). In its current version, V.T.L. § 1194 begins with a section entitled “Chemical tests . . . When authorized,” which provides that a motorist is deemed to have consented to a chemical test to determine his blood alcohol level “within two hours after such person has been placed under arrest” for driving while 11 For the first two decades of the deemed consent provision, a motorist’s refusal to take a chemical test was not admissible at trial. King and Tipperman at 557 (citing People v. Stratton, 286 A.D. 323 (3d Dept. 1955), affirmed, 1 N.Y.2d 664 (1956) (holding “[t]he courts of this state have long and consistently held that under our self-incrimination laws the receipt of evidence in a criminal trial of defendant’s complete silence or refusal to answer is reversible error.”). Rather, the provisions of the V.T.L. governing admissibility of evidence at trial were concerned only with the results of chemical tests. 19 intoxicated where the police officer has “reasonable grounds to believe” the motorist was driving while intoxicated. V.T.L. § 1194(2)(a)(1) (emphasis added). This plain language directly governs what police officers can do after an arrest (i.e., police officers cannot forcibly administer a chemical test if a motorist refuses to consent); it is not merely an ex post evidentiary rule. Where a motorist refuses to submit to a chemical test to which he is deemed to have consented, the test is not performed, and the motorist is subject to civil penalties. Section 1194 provides that where a motorist refuses to submit to a chemical test, he must be informed that his “license or permit to drive and any non- resident operating privilege shall be immediately suspended and subsequently revoked . . . for refusal to submit to such chemical test or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested or detained[.]” V.T.L. § 1194(2)(b)(1). If the motorist persists in refusing the chemical test, and absent a court order mandating a chemical test, see V.T.L. § 1194(3), the test shall not be given. V.T.L. § 1194(2)(b)(1). Instead, the police officer must prepare a written report of the refusal, and that report must be presented to the court at the motorist’s arraignment. V.T.L. § 1194(2)(b)(1) & (2). Based on the police officer’s refusal report, the court shall temporarily suspend the motorist’s license or driving privileges pending the outcome of a due process 20 hearing. V.T.L. § 1194(2)(b)(3). In this regard the term “refusal” has a specific meaning in in the context of the Vehicle and Traffic Law. At the due process hearing, the DMV must determine whether the motorist was given sufficient warning, “in clear or unequivocal language, prior to such refusal” of the consequences of that refusal (immediate suspension and later revocation of the license) and “such person refuse[d] to submit to such chemical test or any portion thereof.” V.T.L. § 1194(2)(c).12 The “Sanctions” section of the statute provides that if a motorist was sufficiently warned and refused a chemical test to which he was deemed to have consented, and the other criteria are satisfied, his license is immediately revoked for at least one year and “shall not be restored . . . except in the discretion of the commissioner.” V.T.L. § 1194(2)(c) & (d)(1). The motorist is also liable for a “civil penalty” of $500 or greater. V.T.L. § 1194(2)(d)(2). In addition, evidence that a motorist knowingly and persistently refused a chemical test to which he was deemed to have consented can be admitted against him at trial. The section of 1194 entitled “Evidence” provides that evidence of a motorist’s refusal to submit to a chemical test “shall be admissible in any trial, proceeding or hearing” for driving while intoxicated or impaired “but only upon a 12 The Department of Motor Vehicles must also determine that the police officer had “reasonable grounds to believe” that the motorist was driving while impaired or intoxicated and whether the police officer made “a lawful arrest of such person.” V.T.L. § 1194(2)(c). 21 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.” V.T.L. § 1194(2)(f).13 After two hours, the deemed consent period terminates and different rules govern: police officers may administer a chemical test only upon the motorist’s voluntary consent, see Atkins, 85 N.Y.2d at 1008, or pursuant to a valid court order under V.T.L. § 1194(3). 3. Although the lower courts are divided, the First Department and the Bronx County Criminal Courts, where this arrest occurred, strictly interpret the “deemed consent” provision and suppress refusals made after two hours Appellant relies on a body of case law that reasons that if consent can be given after two hours making a consensual and voluntary breathalyzer test taken after two hours is admissible, so too should a refusal after two hours be admissible. See Appellant’s Brief at 25-28. Otherwise, these courts reason, the offer in Atkins becomes a mere gesture without consequences. Id. (citing, inter alia, People v. 13 In a criminal proceeding, when there has been an “improper refusal,” a court may charge the fact-finder as follows: 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. C.J.I. Criminal for V.T.L. § 1192(3). 22 Ward, 176 Misc. 2d 398 (Sup. Ct., Richmond Co. 1998); People v. Robinson, 82 A.D.3d 1269, 1269-70 (2d Dep’t 2011); and People v. Rodriguez, 26 Misc.3d 238 (Sup. Ct. Bronx Co. 2009)14). These cases also find that the two-hour rule only applies to the taking of a chemical test pursuant to V.T.L. § 1194(2)(a) and a refusal after two hours is admissible under V.T.L. § 1194(2)(f). These cases ignore an individual’s right to be free from warrantless searches when no longer deemed to have consented pursuant to a statutory obligation – a concept is fundamental to an accused’s constitutional rights. The rationale for the conclusion that the two- hour rule does not apply to refusals is that the “two-hour time limit does not apply to court-ordered tests conducted pursuant to Vehicle and Traffic Law § 1194(3) . . . or independent chemical tests conducted pursuant to Vehicle and Traffic Law § 1194(4)(b).” Robinson, 82 A.D.3d at 1269-70. Yet, both the deemed consent provision including the two hour rule 1194(2)(a) and the provision in § 1194(2)(f) allowing refusals to be admissible at criminal trials are part of the same subdivision of the statute. In contrast, the sections on compulsory chemical tests, V.T.L. § 1194(3), and § 1194(4) governing independent chemical tests are in different subdivisions of § 1194 and apply only where a person has refused a chemical test 14 Notably, this 2009 decision was issued before the Appellate Division, First Department decision in Rosa (2013) which is controlling on the Supreme Court, Bronx County. 23 and testing is done pursuant to court order, (§1194(3)) or where there is a court order and where an accused seeks an independent test (§1194(4)).15 In contrast, there are a number of decisions suppressing refusals that are consistent with the statutory scheme of V.T.L. § 1194(2), including more recent lower court decisions from Richmond County that reject Ward. See, e.g., People v. Morris, 8 Misc.3d 360 (Crim. Ct., Richmond Co. 2005) (recognizing that “[i]n the instant case we deal with a refusal after the two-hour period has tolled based upon police error and folly. Clearly, Vehicle and Traffic Law § 1194 was not meant to protect incompetent police officers who dally in their effort to bring a defendant to the police station. Such protection would only serve to corrupt the results of a chemical test, and make them scientifically inaccurate.”); People v. Kenny, 9 Misc.3d 1104(A) (Crim. Ct., Richmond Co. 2005) (“in this case the defendant was never properly warned that more than two hours had passed from the time of his arrest and that he was no longer subject to the “implied consent” provision of VTL § 1194. Although the general refusal warning may have been administered, there was no warning or notice that more than two hours had elapsed from the time of his arrest, and its repercussion.”); and People v. Graziuso, 23 Misc.3d 1138(A) 15 This Court reasonably concluded that the procedural protection in § 1194(2) do not apply to independent tests under § 1194(4) – a different subdivision than § 1194(2). See People v Finnegan, 85 NY.2.d 53, 59 (1995) (“disagree[ing] with defendant's assertion that assistance for the independent test must be speedily undertaken so that it, too, is administered within two hours of the arrest. Vehicle and Traffic Law § 1194 (2)(a)(1), which mandates that the breathalyzer test be performed within a two-hour time period following arrest, applies only to the official test.”) Yet, they are an integral part of § 1194(2). 24 (Crim. Ct., Richmond Co. 2009)(“evidence of a refusal outside the scope of two hours may be suppressed if the defendant was never properly warned that more than two hours had passed from the time of the arrest, and not told that the defendant was no longer subject to the “implied consent” provision of VTL § 1194.”). Further, in Rosa, the Appellate Division, First Department held that the coercive refusal warnings should have been given after the expiration of two hours.16 112 A.D.3d at 552. These cases suppressing refusals are better-reasoned; they recognize that while the two hour rule may have stemmed in part originally from concerns about 16 The Rosa court was faced with the particular issue of whether the defendant had voluntarily consented to a breathalyzer test when the IDTU officer administered refusal warnings after the “deemed consent” period had expired. While the Rosa court ultimately concluded that the defendant had voluntarily consented since he had agreed to perform the test before the warnings were given, the court still took pains to provide clear guidance on the issue of how the V.T.L. refusal warnings are issued after the period of “deemed consent” can be coercive and render a consent to take a chemical test involuntary: Because more than two hours had passed since the defendant’s arrest, the officer who administered the breathalyzer test should not have advised the defendant that, if he refused to take the test, his driver’s license would be suspended and that the refusal could be used against him in court. Nevertheless, considering the record as a whole, the court properly concluded that defendant’s consent to the test was voluntary. Most significantly, without any coercive conduct by the officer, defendant agreed to take the test before the officer gave the inappropriate warnings. Rosa, 112 A.D.3d at 552 (emphasis supplied). It is clear from this language that the Appellate Division would have gone the other way had the defendant submitted to the test only after the officer had issued the untimely warnings. 25 reliability17, the rule also recognizes that the period of deemed consent is the relinquishment of a right and it is reasonable to (1) place a limit on that relinquishment; and (2) recognize that the failure to offer a chemical test within two hours rests at the hands of the police. Under this rationale, once the period of deemed consent has lapsed, a motorist has a choice whether to take a chemical test and the choice not to do so is not a refusal that should be admissible in a criminal proceeding. This Court made clear in Atkins that there is a difference between the time when a motorist is required to submit (during the period of deemed consent) and the time thereafter (when consent must be voluntary). 85 N.Y.2d at 1008-09. When a motorist is required to submit, it follows that the failure to do so has consequences; namely license suspension/revocation and that the failure to take the test can be used in court. When a motorist has a choice, it follows that the same 17 Appellant argues that concerns about the reliability of testing after the expiration of two hours have proved over time to not be scientifically valid. See Appellant’s Brief at 23-25. Even if concerns about the reliability of testing were proven invalid, it is for the Legislature, not the courts, to address this issue. Further, there remains some point at which a breathalyzer will no longer be a valid measure of a motorist’s intoxication because chemical tests measure BAC which the human body metabolizes over time. See, e.g., People v. O’Connor, 290 A.D.2d 519 (2d Dept. 2002) (permitting evidence from expert of retrograde extrapolation in ascertaining a person’s blood alcohol level at time of alleged offense). Retrograde extrapolation is used by toxicologists called by prosecutor’s in DWI cases to argue a driver had a higher BAC at the actual time of driving where a chemical test analysis is conducted after a passage of time from an arrest. Notably, some courts have found that a consensual breathalyzer test administered after two hours while admissible under Atkins may still be challenged and precluded under a probative/prejudice balancing test if the results are proven not to be scientifically reliable. See, e.g., People v. Holbrook, 20 Misc. 3d 920, 925-26 (Sup. Co., Bronx Co. 2008); People v Victory, 166 Misc. 2d at 549, 558-559, 564 (Crim. Ct., Kings Co. 1995). 26 consequences should not follow. Otherwise the distinction between being required to submit and having a choice would be nonexistent. In this regard the issuance of the refusal warnings informing the motorist what happens as a result of not agreeing to take the test are both incorrect and inherently coercive. The warnings after two hours should tell a motorist that he now has a choice. What it means to have a choice is that if the motorist chooses not to take the test, the refusal consequences do not apply. To suggest otherwise would render the choice after the lapse of the period of deemed consent meaningless. Other judges in Bronx Criminal Court have in recent years granted suppression of refusals based on this rationale. See A. 190-207 (Decisions submitted below in opposition to prosecution’s motion to reargue: (People v. Caceres, Docket 2012BX069848 (Michels, J.) (Crim. Ct. Bronx Co. June 9, 2014); People v. Vargas, Docket 2014BX012928 (Michels, J.) (Crim. Ct. Bronx Co. January 28, 2015); People v. Suriel, Dkt 2013BX057763 (Whiten, J.) (Crim. Ct. Bronx Co. May 5, 2015); People v. Jermaine Robinson, Docket 2011BX065411 (Adler, J.) (Crim. Ct. Bronx Co. June 27, 2016)). 27 B. This Law, As Applied to Mr. Odum’s Case, Renders The First Refusal ‘Warning’ Misleading, and any ‘Consent’ Based on it Invalid; The Breathalyzer Results, Therefore, Were Properly Suppressed Here, it is undisputed that the two-hour period of “deemed consent” in Vehicle and Traffic Law § 1194(2)(a) does not apply because Mr. Odum was offered the breathalyzer test at 5:50 a.m. and he was arrested at 3:12 a.m. See V.T.L. § 1194(2)(a); Atkins, 85 N.Y.2d at 1009; see also People v D.R., 23 Misc. 3d 605, 607 (Sup. Ct., Bronx Co. 2009) (“Given the requirements of Vehicle and Traffic Law § 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.”) Since the “deemed consent” period expired, Mr. Odum faced no adverse criminal consequences if he refused to take the test. Nor did Mr. Odum necessarily face any regulatory consequence from the DMV. See C, infra. Nonetheless, the police issued refusal warnings to Mr. Odum. The prosecution does not dispute that false or misleading refusal warnings vitiate consent. See Appellant’s Brief at 30. Nor do they raise any credible argument that, assuming arguendo the warnings were false and misleading, there is any other, independent basis to find that Mr. Odum consented.18 Instead, they raise 18 Appellant, in its brief, suggests that Mr. Odum agreed to take the coordination test, indicating his “overall willingness to take tests offered.” Appellant’s Brief at 30. This argument was not 28 two arguments: (1) despite the split in authority as to the admissibility of refusals after two hours, the warning about the admissibility of a refusal at a criminal proceeding is not incorrect or misleading; and (2) the DMV’s revising of their regulations renders the license suspension/revocation warning legally “correct.” The People are wrong on both counts. In this case, a police officer, in attempting to convince Mr. Odum to “consent” to a breathalyzer test, told him in no uncertain terms that the test would be used against him. This “warning” of a consequence that the controlling court previously ruled could not be imposed, was false and misleading. Its only purpose in this case was to extract “consent” where it otherwise was not given. This is classic coercion under the law, and renders the subsequent breath test involuntary. This result is consistent with the statutory scheme in V.T.L. § 1192 that includes the two-hour deemed consent provision and all of the protections that were added thereafter to make the imposition of the severe sanctions permissible. The Vehicle and Traffic Law makes clear a “refusal” to take a chemical test is admissible when that refusal is made during the two-hour period of deemed consent because that is when a motorist required to submit. See V.T.L. 1194(2). raised below during the suppression hearing or motion to reargue and therefore cannot be considered by this court. See C.P.L. § 470.05. Moreover, given Mr. Odum was only offered the coordination tests after the coercive refusal warnings and after being informed of the breathalyzer test result, this hardly supports the voluntariness of the breathalyzer test. 29 This Court has never interpreted the statute in any other way.19 The Appellate Division, First Department, which controlled the jurisdiction where Mr. Odum was arrested never interpreted the statute differently. See Rosa, supra. There is a clear split in the First and Second Departments (Rosa and Robinson), as well as lower court decisions, on the admissibility of a refusal after two hours, as Appellant agrees. See Appellant’s Brief at 21-22; 23-27. Yet, Appellant argues there is “ample case law” to support its position that a refusal is admissible at trial, and thus the refusal warning is this regard as to Mr. Odum was appropriate. Id. at 28. Given the split in decisions, for Mr. Odum, at the time the breathalyzer test was administered, the second warning was at best marginally correct, as the majority of Bronx Criminal Courts at the time were suppressing refusals.20 It follows that the police officer’s untimely warning to Mr. Odum, that evidence of his refusal would be used against him in a criminal proceeding resulting from his arrest, was not an accurate representation of Mr. Odum’s legal position at the time of his refusal. Indeed, as applied to Mr. Odum, the warning given was that the refusal “would be” used against him, as opposed to the statutory 19 Though Appellant’s brief is framed at overruling Rosa, and asks this Court to issue a decision on the issue of the admissibility of the breathalyzer test results or that issue “will be shrouded in uncertainty for years to come” Appellant’s Brief at 31, the Rosa decision is not before this Court. The issue before this Court is whether the refusal warnings administered to Mr. Odum were improper such that his consent to take the breathalyzer test were inadmissible. See Appellant’s Question Presented, Brief at 3. 20 In Bronx Criminal Court, J.H.O Stadtmauer conducts the majority of DWI hearings, and he consistently recommends suppression of refusals. Id. 30 language of § 1194(2)(f) reading “can be,” making the warning even more legally incorrect and more coercive. Therefore, even if this Court were to decide that going forward refusals after two hours are admissible -- an issue that is neither preserved nor properly before this Court -- for Mr. Odum, this warning was still inaccurate and thus improperly coercive. Accordingly, the lower court properly suppressed the refusal and breathalyzer test in Mr. Odum’s case. C. The Warning Concerning License Suspension And Revocation Also Was False, Misleading and Coercive The 2012 DMV Memo revised its own policy to permit revocation of driving privileges when a motorist accused of driving while intoxicated declines to submit to a breathalyzer more than two hours after his or her arrest. See A. 178-79 (DMV Counsel’s Office Opinion of Counsel #1-12 dated June 29, 2012). The DMV Memo reversed the DMV’s “long-standing position . . . that a motorist is [only] deemed to have refused to submit to a chemical test if the refusal occurs within two hours of the motorist’s arrest.” The DMV Memo cites several trial- level cases concerning the admissibility at trial of evidence of a refusal to take a chemical test obtained more than two hours after a motorist’s arrest. A. 178-79 (citing Atkins; People v. Ward, 176 Misc. 2d 398 (Sup. Ct., Richmond Co. 1998)). Yet, as discussed further in section A.3., supra, there are an equal number of, if not more, cases going the other way and precluding admission of refusal after two hours, which the DMV excluded. 31 The DMV Memo concludes: “it is the Department’s view that a motorist who refuses to submit to a chemical test more than two hours after the time of arrest is deemed to have refused[.]” A. 179 (emphasis added). The DMV Memo does not explain why the deemed consent two-hour window should be expanded, potentially indefinitely, thereby subjecting motorists to civil penalties for test refusals at any time after their arrest for driving while intoxicated when they are only required to submit within two hours. “[D]eem[ing a motorist] to have refused” a chemical test has no meaning outside of a motorist’s deemed consent which expires after two hours. The DMV position reflected in the 2012 Memo is also in serious tension with the statutory language of V.T.L. § 1194 and caselaw (where there is a recognized split in appellate and lower case decisions) and further is subject to vacatur when challenged judicially.21 It is also mere guidance on the part of the DMV but it is nowhere near the unequivocal statement in the warning that a license will be immediately suspended, then revoked as in the refusal warning language. Notably, a motorist’s license is not automatically revoked given that the motorist is still entitled to due process via a DMV Refusal Hearing. See V.T.L. § 1194(2)(c). Often, too, the suspension is lifted and a license is not revoked due to 21 An order and judgment of the DMV can be challenged pursuant to article 78 of the C.P.L.R. § 7803(3) (“whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed”). 32 the police officer failing to appear to testify at a scheduled DMV refusal hearing. Thus, the mandatory language it includes “will result in”, is not in fact what mandatorily follows. Even if the DMV Memo renders the first warning issued to Mr. Odum legally correct given a change in DMV policy, there is still the second refusal warning discussed in section A, supra that rendered Mr. Odum’s consent involuntary in this case. CONCLUSION FOR THE FOREGOING REASONS, THIS COURT SHOULD AFFIRM THE APPELLATE TERM, FIRST DEPARTMENT’S DECISION AFFIRMING THE LOWER COURT’S SUPPRESSION OF THE INITIAL REFUSAL AND BEATHALYZER TEST RESULTS. Dated: Bronx, NY September 29, 2017 Respectfully submitted, t %uk flu V. MARIKA MEIS Attorney for Defendant-Appellant THE BRONX DEFENDERS 360 East 161st Street Bronx, NY 10451 (718) 838-7846 33 Certificate of Compliance Pursuant to Part 500.13(c)(1) of the Rules of Practice of the Court of Appeals, State of New York The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules and regulations, etc. is 8,146 words.