Early Sunday morning, New York City Police Officer Andrew Kelly, while allegedly driving in an intoxicated condition, struck and killed 32 year old Vionique Valnord in Old Mill Basin, Brooklyn. The accident happened at approximately 12:41 a.m., however, Kelly’s blood was not drawn for more than seven hours. How can this happen? Simple, Officer Kelly exercised his statutory right to refuse to submit to a chemical test.

Let’s start with a brief overview of New York’s “deemed consent” law. To summarize the law; every New York driver is deemed to have given consent to the testing of their breath, blood, urine or saliva to determine the alcoholic and/or drug content of their blood provided the officer has reasonable grounds to believe the driver is impaired or intoxicated and the test is administered within two hours of arrest. See NY VTL § 1194(2)(a)(1), (2) see also 10 NYCRR 59.2 (All samples shall be collected within two hours of the time of arrest).

However, a driver has a qualified statutory right to refuse to submit to a chemical test. The right to refuse is qualified in several ways. Yes, one may refuse to take the test and, absent a court order, no test will be given. However, although one may refuse the test, if properly warned of the consequences, and if they persistently refuse, they may incur a “civil” penalty which includes a fine and the revocation of their driver’s license if the refusal is proven at a DMV refusal hearing. See NY VTL § 1194(2)(b). Further, if the driver, after being sufficiently warned about the consequences associated with refusing, nevertheless, persistently refuses, the refusal can be used by the prosecution at trial. See NY VTL § 1194(2)(f).

Finally, if a driver refuses to submit to a chemical test, that driver can be subjected to a compulsory, court ordered, chemical test. See NY VTL§ 1194(3). Such court ordered compulsory tests are almost always of the blood.

Notably, refusing to submit to a chemical test is not a criminal offense nor is it even a non-criminal traffic infraction. This is distinguished from refusing a breat screening test which is a traffic infraction. Refusals are purely “civil” offenses handled by the Department of Motor Vehicles. See People v. Thomas, 45 N.Y. 2d 100 (1978).

In this case, Officer Kelly exercised his qualified right to refuse to submit to a chemical test. As a result, his refusal can be used against him at trial. But more importantly, in this case, his qualified right to refuse was overcome by the issuance of a court order compelling Officer Kelly to submit to a chemical test to determine the alcohol or drug content of his blood. See VTL § 1194(3)(b).

For more information about Driving While Intoxicated, chemical testing, blood testing or any other question you might have, please contact Tilem & Campbell, PC toll free at 1-888-DWI-COUNSEL or visit us on the web at www.888DwiCounsel.com.

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