People v. Philbert

Court Discusses Whether the Defendant was given a Clear and Unequivocal Refusal Warning from a Warning Card

The defendant was charged with driving while intoxicated pursuant to section 1192 of the Vehicle and Traffic Law after the police officer observed the defendant’s slurred speech, bloodshot eyes and disheveled clothing. The defendant was read his Miranda rights and was then asked to submit to a chemical test. The defendant was read his refusal warning from a card and refused to do the test. The card stated that if the defendant refused to submit to a chemical test it may result in a revocation of the defendant’s license or operating privileges, whether or not he was convicted of the charges for which he was arrested for. He was further warned that the refusal would be introduced into evidence against him. The defendant after his refusal chose to submit to the test. However, the defendant eventually refused to submit to the chemical test after a failed attempt in taking the test according to the instructions of the officer. The defendant then sought to suppress the refusal warning.

Section 1194(4) of the V.T.L of the states that refusal to submit to a chemical test is only admissible in trial where the warning was sufficient, clear and unequivocal language of the effect of the refusal to submit to a test in prosecution of section 1192. The police officer recited the warning on the card before he asked the defendant to take the chemical test, however, according to Kowanes v. Department of Motor Vehicles, 54 A.D.2d 611 mere recital of the warning and subsequent refusal does not automatically result in a revocation of the defendant’s license. In 1980 the legislature amended the, section 1194(2) of the statute to provide for immediate mandatory suspension and future revocation upon refusal to take the test and after proper warnings had been given. However, the law in 1981 was later amended to provide for immediate suspension and subsequently revocation where there was a refusal to take the test after proper warning was given whether or not he is found guilty of the charge for which he is arrested. The defendant was not properly warned about the immediate and serious penalties in failing to submit to a chemical test. The difference between possible future revocation and immediate suspension may well make a difference in an individual’s decision whether or not to take a breathalyzer test. The evidence of a refusal at a trial is used to show consciousness of guilt, therefore an officer should strictly comply with the statute. As a result, where the defendant was not given warning in clear and unequivocal language of fact that his refusal would positively result in immediate suspension of license, evidence of the criminal defendant’s refusal to take breathalyzer test was inadmissible in prosecution for DWI driving while intoxicated and would be suppressed.

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