By Joseph McCormack and Timothy C. Stone
On May 5, 2006, a driver was stopped at the guard station while
exiting the United States Merchant Marine Academy at Kings
Point. The military guards approached, noticing that the
driver appeared to be intoxicated. When they tried to speak
to him, the driver sped off with one of the guards clinging to the
car door, the vehicle swerving into the oncoming lane of
traffic. The man was eventually stopped by the Kings Point
Police and arrested; he was later brought to a Nassau County drunk
driver testing location and, two hours and five minutes after his
arrest, refused to provide a breath sample to the police. The
legal question implicated by this case is whether a defendant’s
refusal to consent to a Breathalyzer test, when such refusal
transpires longer than two hours after his arrest, is admissible as
evidence against that defendant in a subsequent criminal trial for
a drunk-driving offense.
Today, evidence of a suspect’s refusal that came more than two
hours after his arrest would almost certainly be admissible at
trial. In fact, over the past fourteen years virtually every
New York court has held that no such time limit exists, a
conclusion supported by legislative history, statutory plain
meaning, and binding New York caselaw. Yet recently this
issue has arisen once again as an unlikely bone of judicial
contention.
The genesis of the present disagreement was a pair of aberrant
2005 trial court decisions, the holdings of which seemingly turned
back the clock and found that a two hour lapse between arrest and
refusal renders such refusal inadmissible. These cases relied
on an overly broad conception of the so-called “two-hour rule” once
prevalent in New York decisional law. This Essay examines the
language and history of the statutory provision at issue, Vehicle
and Traffic Law § 1194, in the context of nearly two decades of New
York caselaw. It concludes that application of the two-hour
rule to chemical test refusals is simply not the law in New York .
. . nor should it be.