Judges： Billings
Filed Date： 11/3/2011
Status： Precedential
Modified Date： 10/19/2024
OPINION OF THE COURT
I. The Basis for this Proceeding
Petitioner seeks to reverse respondent New York State Department of Motor Vehicles’ determination of August 31, 2010, affirming the revocation of her driver’s license for one year based on her refusal to submit to a chemical test to measure the level of alcohol in her blood, after her arrest for driving under the influence of alcohol. (Vehicle and Traffic Law §§ 1192, 1194 [2].) Although petitioner was acquitted of the charges under Vehicle and Traffic Law § 1192, that acquittal did not eliminate the revocation. (Vehicle and Traffic Law § 1194 [2] [b]; § 1199 [1]; see People v Burnet, 24 Misc 3d 292, 297 [Sup Ct, Bronx County 2009].) The revocation period also now has elapsed, but to reinstate her license she still must pay the $750 civil penalty respondent assessed as part of its administrative determination on her refusal: a penalty she cannot afford, being unemployed, due in part to the loss of her license. (Vehicle and Traffic Law § 1194 [2] [d] [2]; § 1199.)
Petitioner explains, in sum, that, when the police asked her to submit to the chemical test, she was experiencing an asthma attack, so her primary concern was her request that the police transport her to a hospital to receive emergency treatment, before attending to the test. She maintains that the police never warned her of the potential license revocation if she refused the chemical test.
The verified petition, written by petitioner without legal assistance, specifically complains about the conduct of respondent’s administrative hearing on her refusal, the revocation, and the monetary penalty. She points out that, when the police
“Furthermore, the officer at the hearing was not going to testify that he warned me of the consequences of a refusal. He said nothing at all about any warnings until the judge at the hearing coached him to read from a form .... Until the judge said ‘don’t you remember saying this,’ and actually pointed to the part of the form where the refusal language is, the officer was not going to testify to ever warning me . . . because the officer did not actually warn me of the consequences of a refusal . . . .” (Verified answer, exhibit A.)
As explained more fully below, the court vacates the revocation and civil penalty on a combination of grounds. Due to petitioner’s distressed physical and emotional condition, petitioner did not knowingly refuse the chemical test. Although Vehicle and Traffic Law § 1194 (2) (a) implies consent to a chemical test, regardless of whether consent is unknowing and involuntary, the statutory terms do not similarly imply a refusal if it is unknowing or involuntary. Even if the court is to construe Vehicle and Traffic Law § 1194 to imply a knowing and voluntary refusal regardless of the circumstances, however, respondent failed to satisfy its burden to prove a persistent refusal, which Vehicle and Traffic Law § 1194 (2) (f) explicitly requires. Moreover, even if evidence of a persistent refusal was not required in the administrative hearing, the evidence that petitioner’s refusal was predicated on a warning of the consequences, presented only through the ALJ’s overreaching, was tainted by his readily perceivable bias.
II. The Administrative Record
While petitioner admits she refused a chemical test at the point when she was experiencing an asthma attack and urgently needed medical treatment, respondent’s “REPORT OF RE
At the administrative hearing, where arresting officer Anthony testified, he never offered or identified the report of refusal. After Officer Anthony testified about the circumstances surrounding petitioner’s arrest, only the ALJ, acting as respondent’s advocate, produced the report and identified it in front of the witness, describing it to him: “I show you a report of refusal to submit to a chemical test.” (Id., tr of proceedings, Mar. 18, 2010, at 10.) The ALJ proceeded, through leading questions, to elicit the witness’s affirmation of the criteria authenticating the document and qualifying it as a business record. Satisfied that the report constituted sufficient evidence to support a refusal and warning of the consequences, the ALJ admitted the report in evidence and asked the officer whether he wanted to offer any further testimony.
Returning to the circumstances following petitioner’s arrest, Officer Anthony volunteered “that she did explain to me later on that she had a death in the family . . . , that might have contributed ... to the — the problems she gave us. . . . And after some time she — she was cooperative, and . . . easy to deal with.” (Id. at 12.) Nevertheless, no one attempted a second time to administer a chemical test to her.
Upon examination by petitioner, Officer Anthony further admitted that she was complaining about her asthma. The ALJ quickly interjected with more leading questions, reverting back to the report of refusal, and reminding the witness that it specified the warnings given to petitioner when asked to take a blood test, even though the report did not specify that test. The ALJ asked the witness to read the warnings from the exhibit that the ALJ specified were given to her.
Petitioner, in turn, testified that her father, whom she had been caring for, died November 17, 2009. Late in the evening November 18, 2009, her friend Donna Kelly telephoned petitioner and asked her to drive Kelly home from a bar. Although petitioner preferred not to be bothered in her grief and was crying constantly, she acceded because Kelly had consumed too much alcohol to travel home by herself. Once in petitioner’s vehicle, Kelly argued incessantly about where she wanted to be driven, causing petitioner to drive erratically, which led to the
Although petitioner volunteered “to take a sobriety test” when the police stopped her, the officers did not offer a test until later. {Id. at 19.) By then, petitioner, distraught that she might not be released for her father’s funeral the next day, in pain from handcuffs so tight they were cutting her wrist and numbing her hand, fighting off an asthma attack, and worried she would not receive timely treatment as she waited hours for it, had become too agitated and distracted to concern herself immediately with the test.
Officer Anthony’s account was consistent. Petitioner was vomiting, experiencing difficulty breathing, and suffering an asthma attack severe enough that the police secured an ambulance to transport her to a hospital on a stretcher. He “could hardly get her to stand” {id. at 8), so she “laid out on the floor.” {Id. at 9.)
Petitioner pointed out that Officer Rogers, who offered the test, never specified the type of test or what it entailed, which might have encouraged petitioner, like warning of the consequences of refusal, to realize she could deal with the test offered despite her distress. (People v Garcia-Cepero, 22 Misc 3d 490, 497-498 [Sup Ct, Bronx County 2008].) Without more detail, petitioner well may have expected that the test would require her to breathe hard into an Intoxilyzer when she “felt her airways tightening up” and was gasping for breath due to her asthma. (Verified answer, exhibit A; see People v Bratcher, 165 AD2d 906, 907 [3d Dept 1990]; People v Burnet, 24 Misc 3d at 296-297.) Nor did the officers accommodate her request to loosen her handcuffs to relieve her agitation. Once she refused the test, the officers simply walked away.
III. Evaluating Petitioner’s Refusal of a Chemical Test
A. Whether Petitioner’s Refusal was Knowing and Voluntary
This record supports the conclusion that petitioner’s refusal of the test offered by the police, regardless whether the police recited any warning, resulted from her impaired physical and emotional condition, rather than any knowing decision not to submit to a test. (Gagliardi v Department of Motor Vehs., 144 AD2d 882, 883 [3d Dept 1988].) Vehicle and Traffic Law § 1194 (2) (a), which obligates a driver, when lawfully arrested on rea
“[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test . . . , at the direction of a police officer:
“(1) having reasonable grounds to believe such person to have been operating in violation of [Vehicle and Traffic Law § 1192] and within two hours after such person has been placed under arrest for any such violation . . . .” (Vehicle and Traffic Law § 1194 [2] [a] [emphasis added].)
Thus a chemical test is valid even when administered to an unconscious, extremely disoriented, or confused person. (People v Goodell, 79 NY2d at 871; People v Kates, 53 NY2d at 593; People v Morrisey, 21 AD3d at 598; People v Dombrowski-Bove, 300 AD2d at 1123.)
Vehicle and Traffic Law § 1194 (2) (a)’s plain language does not, however, conclusively allow a refusal to be unknowing and involuntary. (See People v Morrisey, 21 AD3d at 598; Gagliardi v Department of Motor Vehs., 144 AD2d at 884; People v Rawley, 16 Misc 3d 1103[A], 2007 NY Slip Op 51237[U], *5-6 [Sup Ct, Bronx County 2007].) While the scant prevailing authority does hold that a refusal need not be knowing to trigger a license forfeiture or to admit the refusal as evidence in the prosecution of a charge under Vehicle and Traffic Law § 1192, in each instance the evidence also showed that the driver was not unconscious, unresponsive, or unaware of the warnings given, or the driver actually consented. (People v Morrisey, 21 AD3d at 598-599; Gagliardi v Department of Motor Vehs., 144 AD2d at 884; People v Rawley, 2007 NY Slip Op 51237[U], *5-6.)
The rationale for Vehicle and Traffic Law § 1194 (2) (a)’s implied consent, moreover, is to avoid a result where the greater a driver’s intoxication, the less is her accountability. (People v Kates, 53 NY2d at 595-596; People v Morrisey, 21 AD3d at 599.) The evidence here, however, shows that no such result would ensue, because petitioner did not render herself incapable of
B. Whether Petitioner’s Refusal was Persistent
Even were this court not bound by the Third Department authority that a refusal need not be knowing and voluntary, were to hold instead that it must be knowing and voluntary and therefore were to remand to respondent for findings on that issue, further reasons compel a vacatur of the revocation in any event. For evidence of a person’s refusal to “be admissible in any trial, proceeding or hearing based upon a violation” of Vehicle and Traffic Law § 1192, Vehicle and Traffic Law § 1194 (2) (f) requires a showing not only “that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal,” but also “that the person persisted in the refusal.” While all refusals of a chemical test to measure the level of alcohol in blood are violations of Vehicle and Traffic Law § 1194, not all arise from a charge of violating Vehicle and Traffic Law § 1192, as petitioner’s alleged refusal did. A hearing on a refusal and consequent revocation may be based on a violation of Vehicle and Traffic Law § 1192-a (see Vehicle and Traffic Law § 1194 [2] [a], [b]), a traffic infraction, or another noncriminal violation (see Vehicle and Traffic Law § 1194 [2] [a] [4]; CPL 1.20 [39]; Penal Law § 10.00 [2], [3]; Matter of Hahne v New York State Dept. of Motor Vehs., 63 AD3d 936, 937 [2d Dept 2009]), rather than Vehicle and Traffic Law § 1192, on which petitioner’s license revocation hearing was based. But for her arrest for violating Vehicle and Traffic Law § 1192, she never would have been subject to a chemical test that she allegedly refused.
Moreover, Vehicle and Traffic Law § 1194 (2) (f) refers to “any . . . proceeding or hearing,” not just criminal proceedings, and not just judicial as opposed to administrative hearings. (See Hahne v New York State Dept, of Motor Vehs., 63 AD3d at 936-937.) Most significantly, the body of appellate authority affirming administrative hearing determinations of a valid refusal hew rigorously to Vehicle and Traffic Law § 1194 (2) (f)’s companion requirement for a “warning, in clear and unequivocal language, of the effect of such refusal.” (See Matter of Scaccia v Martinez, 9 AD3d 882, 883 [4th Dept 2004]; Matter of Eyrich v Jackson, 267 AD2d 237 [2d Dept 1999]; Matter of Galante
According to Officer Rogers’s report of the refusal and petitioner’s emphatic testimony, when Officer Rogers offered the test, he never specified the type of test. Officer Anthony nonetheless testified that Officer Rogers “asked her if she wanted to take a blood test; she refused.” (Verified answer, exhibit A, tr at 9.) The officers’ only other mention of her refusal was her words recited in the report, “No — No I’m not giving nothin’,” and the time, 4:05 a.m. Officer Anthony consistently testified that petitioner was otherwise cooperative. Petitioner alluded to her refusal only in explaining her offer to take a sobriety test upon her encounter with the police; the convergent sources of her ensuing distress, agitation, and distraction; and the police’s failure to offer the test initially or after she returned to her calmer, cooperative state.
The record thus lacks substantial evidence that petitioner “persisted in the refusal.” (Vehicle and Traffic Law § 1194 [2] [f|; People v Anderson, 89 AD3d 1161, 1162 [3d Dept 2011]; People v Richburg, 287 AD2d 790, 791 [3d Dept 2001]; see People v Burnet, 24 Misc 3d at 293.) Persistence requires repetitive or unwavering conduct (People v Anderson, 89 AD3d at 1162; People v Richburg, 287 AD2d at 791-792; Dykeman v Jackson, 262 AD2d at 878; People v Bratcher, 165 AD2d at 907), a steadfast position, shown by a continued position despite opposition. (Dykeman v Jackson, 262 AD2d at 878; People v Reynolds, 133 AD2d 499, 502 [3d Dept 1987]; People v Garcia-Cepero, 22 Misc 3d at 494-495; People v Camagos, 160 Misc 2d 880, 884-885 [Crim Ct, Queens County 1993].) While a driver initially may consent to a chemical test and then definitively refuse when actually administered the test, petitioner affirmatively volunteered to submit to a test, but only later, at her most heightened point of distress and agitation, was she asked to submit to a test. (See People v Burnet, 24 Misc 3d at 299.) The police never countered her response to that one request with any opposition, further explanation of the implications, or encouragement; the police never broached the subject again. (People v Garcia-Cepero, 22 Misc 3d at 495; People v Camagos, 160 Misc 2d at 885; see People v Garcia-Cepero, 22 Misc 3d at 497-498.) By simply walk
Moreover, even if a single refusal by itself were enough, petitioner’s single refusal was flanked by prior and subsequent consents, which the police ignored. (See Hahne v New York State Dept. of Motor Vehs., 63 AD3d at 936-937.) While petitioner does not challenge the authority of the person who would administer the test (see Vehicle and Traffic Law § 1194 [4]; Bazza v Banscher, 143 AD2d 715 [2d Dept 1988]), the lack of specificity regarding the test further undermines any finding that petitioner definitively refused a test to measure her level of alcohol intoxication. Even if Officer Rogers asked her to take a blood test, nothing in the hearing testimony indicates the test’s purpose. Only the preprinted portion of his report recites: “the operator was asked to submit to a chemical test to determine the alcoholic and/or drug content of his/her blood.” (Verified answer, exhibit A.) This statement is ambiguous whether Officer Rogers actually described the test to petitioner as one “to determine the alcoholic and/or drug content of his/her blood” or whether this phrase simply describes the test contemplated when he asked her only “to submit to a chemical test” (id.), or “to take a blood test.” (Id., tr at 9.) Her response, “I’m not giving nothin’,” indicates no understanding of either the type or the purpose of any requested test. (People v Garcia-Cepero, 22 Misc 3d at 495.)
The requirement for a persistent refusal recognizes that the refusal to submit to a chemical test evinces the driver’s “consciousness of guilt” that the alcohol content of her blood is high. (People v Anderson, 89 AD3d at 1162; People v Beyer, 21 AD3d 592, 595 [3d Dept 2005]; People v Gallup, 302 AD2d 681, 683 [3d Dept 2003]; Bazza v Banscher, 143 AD2d at 716.) Here, of course, the benefit of hindsight establishes that petitioner bore no guilt to be conscious of. Yet even without hindsight, in the revocation hearing, in contrast to the trial on guilt under Vehicle and Traffic Law § 1192 or a trial on liability for personal injury or property damage due to driving while intoxicated (Bazza v Banscher, 143 AD2d 715 [1988]), her culpability of that act, evidenced by her consciousness of culpability, is not an issue. Therefore she had no reason or occasion to show that the circumstances of her refusal did not evince her culpability of
IV The Conduct of the Hearing Also Deprived the Record of Substantial Evidence That Any Refusal was Predicated on a Warning
Again hindsight’s clairvoyance shows petitioner would have benefitted from submitting to a test to establish that she was not in fact under the influence of alcohol, as her trial on the criminal charges eventually showed. (People v Garcia-Cepero, 22 Misc 3d at 495.) Conscious of her innocence, petitioner had no incentive to refuse such a test, with its positive consequences, if she were aware of her refusal’s adverse consequences. As she succinctly affirmed in her appeal to respondent’s Appeals Board: “If I had known there were consequences, I would have taken the test.” (Verified answer, exhibit A.)
Of course the ALJ at the hearing did not know the eventual verdict of innocence, but given that distinct possibility, he was obligated to accept the concomitant possibility that she was never warned of her refusal’s adverse consequences equally with the possibility that she was so warned. His conduct of the hearing demonstrates his ready assumption that she was warned and closed-mindedness to any other set of facts. His affirmative assistance and advocacy on the police’s behalf and lack of evenhandedness toward petitioner’s presentation taints what evidence of a warning the record contains. (CPLR 7803 [3], [4]; Matter of Hakeem v Coombe, 233 AD2d 805, 806 [3d Dept 1996].)
Respondent agency offered no evidence that petitioner’s refusal was predicated on a warning of the consequences until the ALJ offered it and developed it through his pointed questioning of respondent’s witness. Although the burden to produce that evidence rested on respondent, the ALJ’s conduct effectively shifted that burden to petitioner, unschooled in the issues to be explored in the hearing, to produce evidence and prove that she was not warned. (CPLR 7803 [3]; Earl v Turner, 303 AD2d 282, 283 [1st Dept 2003]; Matter of Feliz v Wing, 285 AD2d 426, 427 [1st Dept 2001]; Matter of Wheels, Inc. v Parking Violations Bur. of Dept. ofTransp. of City of N.Y., 185 AD2d 110, 111 [1st Dept 1992]; see People v Anderson, 89 AD3d at 1162; Matter of Casalino Interior Demolition Corp. v Martinez, 29 AD3d 691, 692 [2d Dept 2006].)
An “impartial decision maker is a core guarantee of due process, fully applicable to adjudicatory proceedings before administrative agencies.” (Id. at 161.) The ALJ’s demonstrated bias, in violation of due process, by itself also provides a basis for vacating his decision. (CPLR 7803 [3]; see Scaccia v Martinez, 9 AD3d at 884.)
The ALJ’s affirmative assistance and advocacy on the police’s behalf, without at least equal treatment of petitioner and her potential defenses, worked a particular deprivation of fairness and due process because, if the ALJ was obligated to develop the evidence on behalf of any party, that party was the unrepresented individual petitioner. (Matter of Jackson v Hernandez, 63 AD3d 64, 69 [1st Dept 2009]; Feliz v Wing, 285 AD2d at 427.) Yet the tainted evidence of a warning teased out of respondent’s
These circumstances independently support reversing the revocation, rather than remanding to respondent agency, even to a different ALJ, for development of a new record. (Earl v Turner, 303 AD2d at 283; Matter of Wheels, Inc. v Parking Violations Bur. of Dept. of Transp. of City of N.Y., 185 AD2d 110 [1992]; Casalino Interior Demolition Corp. v Martinez, 29 AD3d at 691692; Hakeem v Coombe, 233 AD2d at 806.) First, a remand would not undo the coaching of respondent’s witness. Moreover, to whatever extent a remand achieves its purpose in developing the evidence on petitioner’s behalf, thus diminishing any residual evidence of a warning, the result will further weaken the evidence of a persistent refusal — the less the evidence of a definite warning or its reinforcement through repetition, the less the evidence of a definitive, deliberate, or steadfast refusal. (Vehicle and Traffic Law § 1194 [2] [f]; People v Bratcher, 165 AD2d at 907; People v Reynolds, 133 AD2d at 502; People v Garcia-Cepero, 22 Misc 3d at 494-495; People v Camagos, 160 Misc 2d at 884-885.)
Even if the Second Department’s suggestion that substantial evidence of petitioner’s persistent refusal is not required in administrative hearings under Vehicle and Traffic Law § 1194 (Hahne v New York State Dept. of Motor Vehs., 63 AD3d at 936-937) controls over the Third Department’s prior recognition that section 1194 (2) (f) does require that evidence in those hearings (Dykeman v Jackson, 262 AD2d at 878), the ALJ’s prejudgment of the facts and partiality in conducting the hearing tip the balance. (See Scaccia v Martinez, 9 AD3d at 884; Gatto v Adduci, 182 AD2d at 761.) The ALJ’s conduct already has impaired respondent’s evidence of a warning. The remedy
V Disposition
For the combined reasons set forth, the court vacates respondent’s determination of August 31, 2010, revoking petitioner’s driver’s license and assessing a civil penalty. (CPLR 7803 [3], [4]; 7806; Vehicle and Traffic Law § 1194 [2]; § 1199.) Absent any impediments to reinstatement of petitioner’s license unassociated with her arrest and refusal to submit to a chemical test on November 19, 2009, respondent shall reinstate her license immediately. This decision constitutes the court’s order and judgment granting the petition to the above extent. (CPLR 7806.)