Skip navigation
CLN bookstore
× You have 2 more free articles available this month. Subscribe today.

NY Court of Appeals Affirms Dismissal of DWI for Improper Breathalyzer Refusal Warning

by Dale Chappell

The Court of Appeals of New York found that a driver’s eventual consent to a breathalyzer test was “coerced” and involuntary after police waited more than two hours to ask him to consent to the test. The Court held that the officer’s warning that his refusal could be used against him in court was improper under the law, and that his consent based on that warning required suppression of the evidence.

Donald Odum was arrested for DWI and taken to the police station. Over two hours later, he was asked to submit to a breathalyzer test but declined. The officer warned Odum that if he refused to take a breath test, it would be used as evidence against him in court. Odum then agreed, based on that warning, and the result showed his 0.09 percent alcohol level was just over the legal limit.

He moved to suppress the test results, and the criminal court ruled that because Odum had refused but then consented to the breathalyzer more than two hours after his arrest based on the officer’s erroneous statement of the law, the evidence had to be suppressed.

The State appealed, and the intermediate appellate court affirmed. The Court of Appeals granted the State leave to appeal and affirmed the lower courts’ rulings.

Vehicle and Traffic Law § 1194(2)(a) provides that any person licensed to drive in New York “shall be deemed to have given consent” to any alcohol or drug test at the direction of law enforcement when suspected of DWI.

Section 1194(2)(b) provides that if a driver refuses to submit to such test, the fact that he or she refused can be used against him or her in court. However, § 1194(2)(a)(1) also provides that such a test must be given “within two hours after such person has been placed under arrest.”

The two-hour limit is not “meaningless,” the Court of Appeals admonished, in interpreting § 1194. While a driver may consent to a test beyond the two-hour limit, the provision that allows for admission in court of a driver’s refusal applies only to refusals within that time limit, the Court explained. When police use that warning of admission in court to prompt a driver to take a breathalyzer after he has refused beyond that time limit and then consents, the consent is based on an improper statement of the law and is thus treated as coerced, the Court concluded.

The Court reasoned that words and phrases of a statutory section must be interpreted with reference to the entire section and that the two-hour limit therefore applies to all of § 1194(2).

This meant that after the two-hour limit expired, Odium’s refusal could not, “as a matter of law,” have triggered the provision allowing admission of his refusal to be used as evidence against him. This also meant that the officer’s warning to Odum that his refusal could be against him was incorrect as a matter of law.

The Court instructed that the right to refuse to submit to a breath test, on the facts presented in this case, is statutory, not constitutional. That is, the Court noted that the “Legislature is free to amend the statute to clarify the scope of the statutory rights, particularly in light of the express clarification in Birchfield [by the U.S. Supreme Court in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)] that warrantless breath tests are constitutionally permissible.”

New York law allows a driver to refuse a breathalyzer. And, because Odum’s refusal came after the two-hour statutory limit for police to compel him with warnings that his failure to take the test could be used against him in court, his consent based on that warning was involuntary.

Accordingly, the New York Court of Appeals affirmed the lower courts’ rulings, suppressing the evidence against Odum. See: People v. Odum, 2018 NY Slip Op 03173 (2018). 

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

People v. Odum



The Habeas Citebook: Prosecutorial Misconduct Side
Advertise Here 3rd Ad
PLN Subscribe Now Ad